The directive stipulates that an employee shall be granted time off due to force majeure for urgent family matters caused by illness or accident if the employee's immediate presence is necessary. It also allows member states to limit such time off from work entitled on an annual basis or in a specific case.

Even before implementation of the Work Life Balance Directive in Poland, there was a legal basis for excusing an employee's absence if emergency circumstances prevent performance of work tasks. Indeed, according to a Regulation of the Minister of Labor and Social Policy of 15 May 1996 on the manner of justifying absences from work and granting leave to employees, reasons justifying absence of an employee from work should be considered, including cases of inability to work indicated by the employee and recognized by the employer as justifying absence from work.

As part of implementation of the Work Life Balance Directive, art. 148¹ was added to the Labour Code, according to which an employee is entitled to 2 days or 16 hours of leave from work during a calendar year due to force majeure for urgent family matters caused by illness or accident if immediate presence of the employee is necessary.

Who can take leave?

Leave due to force majeure extends to employees, i.e. persons working under an employment contract, appointment, election, nomination, or cooperative employment contract. It is not available to persons employed under civil law contracts (e.g., B2B contracts).

Extent of leave

An employee is entitled to 2 days or 16 hours of sick leave during a calendar year. In the first application for such leave submitted in a calendar year, the employee shall decide how to use the leave for the calendar year.

Time off on an hourly basis applies accordingly to an employee for whom the daily working time norm under separate regulations is less than 8 hours (e.g., for people with severe or moderate disabilities).

If an employee is a part-time employee, force majeure leave granted on an hourly basis shall be determined in proportion to that employee's working hours. An incomplete hour of leave is rounded up to the nearest whole hour. So, for example, an employee working 3/5 full-time is entitled to an hourly exemption of 10 hours.

When can leave be taken?

Conditions for benefiting from leave are:

• force majeure,
• urgent family matters caused by illness or accident,
• immediate necessary presence of the employee.

The term “force majeure”, in accordance with the justification to the law introducing art. 148¹ LC, has been explained in case law as an event that is external, unforeseeable and could not have been prevented. The justification also states that the Work Life Balance Directive does not define or clarify this concept, and that under EU law it will be verified in case law practice.

However, it is questionable to what extent it is correct to apply the requirement that a leave event could be prevented on grounds of this provision. Indeed, in the context of this provision, force majeure relates to urgent family matters caused by illness or accident. On the other hand, it is difficult to imagine that the purpose of this provision is to exclude the ability to use leave, for example, in a situation of a child's accident at home due to employee failure to provide care for the child (which in many cases can be qualified as a preventable event). However, the above concerns have relatively low practical significance from this perspective since the employer has very limited ability to verify the reason for using leave.

Application procedure

Regulations do not specify the form of submission. Thus, an employee may apply in any form (e.g., in writing, by e-mail or text message). However, this must be no later than on the day when leave is taken.

Given the nature of this institution, which involves force majeure and the need for immediate presence of the employee and given that leave can also be granted on an hourly basis, a request should be allowed not only before the start of work on the day in question, but also during the working day.

Obligation to grant leave

According to regulations, an employer must grant time off work at the request of an employee. In practice, the power of an employer to refuse an employee's request cannot be completely ruled out. However, it seems that case law on granting leave on request (regulations use the same wording "the employer is obligated to grant") will apply only in part. This is because force majeure leave is exceptional in nature, as it relates to urgent matters in which the employee's immediate presence is necessary. It seems that the employer will be able to refuse a request only in particularly exceptional and obvious situations, such as when the reason for leave given by the employee clearly cannot qualify as force majeure in urgent family matters caused by illness or accident in which the employee's immediate presence is necessary.

Partial remuneration for leave

Leave from work due to force majeure is partially paid absence. During this leave of absence from work, the employee retains the right to be paid one-half of the salary, which is calculated, as a rule, as remuneration for annual leave (§ 5 sec. 1 of the Ordinance of the Minister of Labour and Social Policy of 29 May 1996 on the manner of determining remuneration in the period of no work and remuneration constituting the basis for calculating compensation, severance pay, compensatory allowances to remuneration and other receivables provided for in the Labour Code). In this regard, the rule is that in determining remuneration for the period of time off work and no work, when regulations provide for retention by the employee of the right to remuneration, rules applicable to the determination of vacation pay shall apply, except that the components of remuneration determined in the average amount shall be calculated from the month in which time off work or the period of no work occurred.

Recording of leave in documentation

Employee use of force majeure leave should be reflected in records kept by the employer (§ 6 point 1b.8 of the Ordinance of the Minister of Family, Labour and Social Policy of 10 December 2018 on employee records).

Documentation of such leave is important, among other things, in the context of an issued employment certificate. This is because the employment certificate should indicate, among other things, the number of days or hours of leave taken due to force majeure in the calendar year in which employment ceased (§ 2 sec. 1, point 5a of the Ordinance of the Minister of Family, Labour and Social Policy of 30 December 2016 on a labour certificate and sample labour certificate attached thereto).

Employee protection and employer liability

Interestingly, art. 186⁴ LC applies accordingly for an employee taking time off work due to force majeure, which relates to allowing an employee to return to work after leave related to parenthood. In practice, however, it is difficult to imagine that a two-day absence from work can prevent or hinder an employee's continued employment in a current position.

It is worth recalling that violations relating to force majeure leave may entail misdemeanour liability on the part of the employer. In particular, as indicated in the justification to the law introducing art. 148¹ LC, violation of force majeure leave regulations will be sanctioned under art. 281 § 1 point 5 LC, which deals with offenses related to violation of work time regulations.

Leave due to force majeure is one of many types of leave related to an employee's personal situation. Indeed, under the Labour Code, it is possible to take, among other things, leave on demand, leave from work to attend to personal matters or care leave. We await how court jurisprudence on the institution of leave due to force majeure will take shape, particularly with regard to the qualification of events constituting the basis for use of such leave, as well as the ability to reject the employee's request in exceptional situations.

Joanna Dudek