Care leave, introduced into the Labour Code on 26 April 2023 is an employee entitlement that appeared relatively recently in the Polish legal order (we wrote about its granting in the article Care Leave). As a result, there is still no established case law or practice on the application of provisions defining rules for its granting. Nevertheless, every employer should consider appropriate solutions if receiving a request from an employee for care leave.

Sanctions are imposed for potential irregularities related to this employee entitlement. Pursuant to art. 281 § 1(5b) of the Labour Code, a fine ranging from PLN 1,000 to as much as PLN 30,000 may be imposed for infringement of care leave provisions. This provision does not define the violation, nor does it require that it be of a gross nature such as in the case of failure to inform employees of the terms and conditions of employment (art. 281 § 1 (2a) LC).

Thus, a fine may apply to any conduct by a person acting on behalf of an employer that does not comply with rules on granting special leave, not only when an employer ignores or overlooks an application, thus failing to grant care leave within the required time. It can also apply if the employer demands data from the employee requesting such leave that is not on the list in the provision, or breaches rules protecting such employee from termination of employment.

Application to grant care leave

In order to minimise possible risk of breaches in the above regard, an appropriate procedure when an employee applies for care leave should be implemented. As the Act states, a request may be made in writing or electronically, so there is nothing to prevent the procedure from being fully digitised if all employees have access to a company computer.

A properly drafted application form will avoid situations where an employee, when applying for cares leave, fails to provide information required by law, so that the employer may have doubts as to whether there are grounds for granting such leave. On the other hand, there may be situations where employees lacking access to the form will provide redundant information to employers and employers will store this information, thus exposing them to risks under data protection legislation.

What is more, a request can be made no later than one day before the leave is due to start. The employer may therefore have very little time to require the employee to complete or limit application content.

A properly completed application for care leave should include the following:

• name of the person who requires care or support for serious medical reasons,
• reason for the employee's need to provide personal care or support (whereby, according to the justification of the draft implementing care leave provisions, the employee shall not provide details of the health condition of the person for whom personal care is to be provided),
• in the case of a family member, the degree of relationship to the employee,
• in the case of a person who is not a family member, the address of that person.

An employer cannot request any information from the employee other than that listed above. Nor may the employee be required to provide a prior medical certificate/medical documentation of the need for care or support for serious medical reasons (according to the justification of legislation implementing care leave, the employer grants care leave on the basis of an employee's request and the obligation to issue medical certificates would constitute a bureaucratic burden). Any such action constitutes a breach of this leave legislation and may consequently result in a fine.

Care leave and personal data protection

Considering the above, it is worth noting that an employer receives an entire set of new personal data from the employee that was not previously processed. Importantly, this is also so-called special category data, the processing of which is subject to specific legal requirements set in art. 9 GDPR. Therefore, what are the main obligations that an employer faces side in terms of personal data and what should the employer bear in mind?

First and foremost, as mentioned above, the employer cannot request the employee filing a request to provide data not on the list in the provision that precisely defines what the content of a request.

Moreover, although some data processed on this occasion will constitute special category data (health data) it will not be correct to take consent for its processing from data subjects (still a notorious practice of many employers). The basis for processing personal data in relation to an application for care leave by an employee will be art. 6 sec. 1c) GDPR (processing necessary for fulfilment of a legal obligation incumbent on the controller - employer) as far as ordinary data is concerned, and art. 9 sec. 2(b) GDPR as far as special categories of data are concerned (processing necessary to comply with obligations and exercise of specific rights by the controller - employer or data subject - in the field of employment law, insofar as it is authorised by EU law or Member State law providing adequate safeguards for the fundamental rights and interests of the data subject). Collecting consent for data processing would therefore be incorrect, as relevant grounds for processing are different.

Should an employer provide an information clause on processing of the above data under art. 13 or 14 GDPR to an employee or person who requires care or support for serious medical reasons and whose data it collects from the employee? The employer is generally required to provide such a clause with the information set out in art. 13 GDPR (where data is collected directly from the individual) and 14 (where data is collected by indirect means from the individual) about employer processing to data subjects whose data the employer processes. How does this work in the case of care leave?

In the case of the employee, processing of ordinary categories of data will take place on the basis of art. 6 sec. 1c) GDPR, whereby the employee should be informed of such processing related to the performance of employer duties under employment law, in accordance with art. 13 GDPR, already upon conclusion of the employment contract (in practice, this takes place by handing out a broad information clause upon employment).

However, data of other persons will be obtained from the employee. This means that we will deal with a situation under art. 14 GDPR - acquisition of data by means other than from the data subject. This provision provides many exemptions from the information obligation under art. 14 GDPR. In our view, in this situation there is an exemption from art. 14 sec. 5c) GDPR, according to which the obligations of art. 14 GDPR will not apply if acquisition or disclosure is expressly governed by EU law or the laws of the Member State to which the controller (here the employer) is subject, providing for appropriate measures to protect legitimate interests of the data subject (indeed, the acquisition of data of persons who require care or support for serious medical reasons is expressly governed by the Labour Code). This means that the employer will not, in our view, be obligated to comply with the information obligation towards these persons.

Documentation obligations

An employer is obliged to keep applications submitted by employees regarding care leave and its use in employee documentation on matters related to employment (§ 6 point 1b tir. 9 of the Ordinance of the Minister of Family, Labour, and Social Policy of 10 December 2018 on employee documentation). Applications should therefore not be kept in an employee's personnel file, but in separate documentation.

The above obligation is important for the content of employment certificates issued by the employer. This is because regulations require, among other things, that the number of days of care leave taken in the calendar year in which employment ceases be shown in the employment certificate (§ 2 sec. 1 point 6a of the Regulation of the Minister of Family, Labour and Social Policy of 30 December 2016 on an employment certificate and sample employment certificate constituting an annex thereto).

Care leave is an institution of labour law that will undoubtedly pose interpretative difficulties for employers as well as courts or bodies applying labour law. Case law will certainly clarify many practical issues. However, every employer should already be prepared for an employee requesting such leave.

Karolina Romanowska

Tomasz Pleśniak