COVID-19: The “Anti-Crisis Shield” draft law

Today, we were introduced to the draft provisions of the special-purpose act (the so-called Anti-Crisis Shield), which aims to minimize the negative economic effects associated with the spread of the SARS-CoV-2 virus in Poland. Below we present the most important changes for employers in respect of labour law:

1. Remuneration for downtime

The draft law provides that in the event of an economic standstill following the occurrence of COVID-19, the employer will be allowed to reduce the employee's remuneration, but not more than 50%, and such reduced remuneration will not be lower than the minimum remuneration for work (currently 2 600 PLN gross). Such reduced remuneration can be subsidized from the funds of the Guaranteed Employee Benefits Fund up to the amount of 50% of the minimum remuneration for work. The remaining part of the reduced remuneration will be financed by the employer.

2. Reduced working hours

According to the draft law, an employer who has experienced a decrease in economic turnover following the occurrence of COVID-19 is entitled to reduce working hours by max. 20%, but not less than 0.5 of full-time, provided that the remuneration of an employee with such reduced working hours cannot be lower than the minimum remuneration for work. In such a case, the employee's remuneration will be subsidized from the funds of the Guaranteed Employee Benefits Fund up to half of the remuneration amount, but not more than 40% of the average monthly remuneration from the previous quarter. The rest will be financed by the employer. Therefore, in the best scenario (when half of the remuneration does not exceed 40% of the average monthly remuneration), the employer will be able to reduce employment costs by 60% (20% from the reduction of working hours + 40% financed by the state);

A decrease in economic turnover is defined by the draft law as a decrease in the sales of goods or services, in terms of quantity or value, amounting to:

a) not less than by 15%, calculated as the ratio of the total turnover during any 2 consecutive calendar months falling within the period after 1 January 2020 to the day preceding the date of submission of the application for payment of funds from the Guaranteed Employee Benefits Fund, as compared to the total turnover during the corresponding 2 consecutive calendar months of the previous year;

b) not less than 25%, calculated as the ratio of turnover from any given calendar month, falling within the period after 1 January 2020 to the day preceding the date of submission of the application for payment of funds from the Guaranteed Employee Benefits Fund, as compared to turnover from the previous month.

3. Contributions towards Social Security Institution in case of downtime or reduced working hours

It also arises out of the draft law that in the periods of economic downtime or reduced working hours, entrepreneurs will be able to apply for funds from the Guaranteed Employee Benefits Fund in order to pay social security contributions of employees due from the employer on the granted benefits financed by the state. Therefore, contributions on the part of the remuneration financed by the employer will continue to be financed by the employer themselves.

In order to make use of the above measures, the employer cannot be in arrears in the payment of tax liabilities, contributions towards Social Security Institution, health insurance, Guaranteed Employee Benefits Fund, Labour Fund or Solidarity Fund until the end of the third quarter of 2019. Also, the entrepreneur may not be declared bankrupt.

The draft law provides that solutions related to downtime and reduced working hours are to apply not only to persons employed on the basis of a contract of employment, but also, among others, persons employed on the basis of a contract of mandate or other contract for the provision of services.

According to the draft law, the above benefits and measures are to be available for a maximum total period of 3 months.

4. Obligation to lay down the rules of downtime and reduced working hours in the company’s internal legal acts

It is assumed in the draft law that the conditions and manner of performing work during a period of an economic standstill or reduced working hours are determined by the employer in a collective agreement or in agreement with the company trade unions. However, if there are no company trade unions at a given company, this should be made in agreement with the representatives of employees appointed in the manner adopted at that very company. The period for determining said rules shall be two days from the date on which the employees are informed of the intention to introduce the restrictions. If the conditions and manner of performing work during the period of an economic standstill or reduced working hours are not established within this deadline, the employer will be able to establish them on their own, however, the draft law excludes in this case the application of the provisions on the notice of termination amending the contract of employment. Therefore, if the employee does not accept the new conditions, the contract of employment will not be terminated.

5. Attendance allowance

The draft law extends the conditions for entitlement to an attendance allowance. These include not only the closing-down of a nursery, children's club, kindergarten and school, but also the closing-down of another facility or the inability on the part of a nanny or a day carer to provide care due to COVID-19. In addition, according to the draft law, it is not only parents taking care of a child who is 8 years old or less than 8 years old, but also parents taking care of a child with a severe or moderate degree of disability who is less than 18 years old or a child with a disability certificate, as well as insured persons who are exempt from work because of the need to take care, in person, of an adult with disabilities (in cases set out in the Act), who will be entitled to attendance allowance for 14 days.

We would like to point out that the above solutions are only draft legislation, which will now be subject to further consultation. The details may therefore still change. According to the announcements of the government, the draft law is to be adopted by the parliament by the end of this week. We will keep you informed about the ongoing works.

Should you have any doubts or questions, we remain at your disposal. For more information on labour law, please contact attorney Michał Włodarczyk (michal.wlodarczyk@bsjp.pl).