Why these changes?

An important aim of the Work-life Balance Directive is to make it easier for parents and carers to combine work and private life, to achieve gender equality in employment and to work towards a balanced sharing of caring responsibilities between men and women.

• On the one hand, attention is drawn to the difficulties of reconciling professional and family responsibilities, which contribute to women's under-representation in the labour market. A point is made that it is usually women with children or sick or dependent relatives who devote much of their time to unpaid caring duties. This has a negative impact on women's employment - women in this situation often devote less time to paid work or withdraw from the labour market altogether.
• On the other hand, it is emphasised that men need to be encouraged to share care responsibilities more equally. It is important here to tackle inequalities that perpetuate gender stereotypes and widen gender gaps in work and care. The frequently discussed right of the father to participate in the upbringing of his child and the benefits to the child of care provided by both parents are also important in this context.

Demographic changes, including the ageing of the population and the associated increase in demand for informal care, also form the background to the regulations introduced by the Work-life BalanceDirective. These regulations take into account the need to promote a high level of employment in the Union and to keep workers connected with the labour market.

What regulations does the Work-life BalanceDirective contain? What will change?

Carers’ leave

The Work-life Balance Directive requires that every employee be entitled to carers’ leave in the amount of five working days per year. This leave is to serve employees who need to provide personal care or support to a relative (including a son, daughter, mother, father or spouse) or a person living with the employee in the same household. Importantly, these persons must require substantial care or significant support for serious medical reasons. This regulation aims to increase the chances of people with caring responsibilities to remain on the labour market. It also takes account of the continuing increase in demand for care, particularly due to the ageing of the population.

It is worth recalling that the Polish legislation currently provides for the right of an employee bringing up a child aged up to 14 to be exempted from work for 16 hours or 2 days during a calendar year, with retention of the right to remuneration. The published draft act implementing the Directive does not provide for significant changes in the case of this type of leave from work. However, it additionally provides for the introduction of carers’ leave of up to five days per calendar year for the purpose indicated in the Directive, without the right to be remunerated for the duration of this leave.

From the employer's perspective, carers’ leave can be an organisational challenge. Indeed, it may necessitate the provision of replacements and overtime work due to the absence of employees. However, the workplace budget will not be burdened with the salary costs of employees on such leave, which is good news for the employer.

Force majeure

Under the Directive, employees are to be granted the right to time off from work on grounds of force majeure for urgent family reasons due to illness or accident, if their immediate presence is required. Member States may limit employee right to such time off (to a certain amount of time per year or per case).

Currently, Polish regulations leave justification of this type of absence to the discretion of the employer (reasons justifying employee's absence from work include cases of inability to perform work indicated by the employee and recognised by the employer). The draft act implementing the Work-life Balance Directive provides for introduction of the above-mentioned time off from work to the extent of 2 days or 16 hours per calendar year. The planned solutions assume that for the time of such leave the employee will retain the right to 50% of remuneration. Therefore, in accordance with the envisaged changes, the time of the leave will be partially paid and its cost will burden the employer’s budget.

Parental leave

The Work-life Balance Directive stipulates that the Member States are to ensure that every employee have an individual right to take up to four months of parental leave before the child reaches a given age - maximum 8 years. The two months of parental leave will not be transferable to the other parent, i.e. it will be granted on an exclusive basis to each parent separately. As mothers are the most likely to take parental leave, this regulation is intended to encourage fathers to exercise their right to parental leave. It is also intended to promote and facilitate the return of mothers to the labour market after maternity and parental leave.

According to the draft law, the total amount of parental leave for both parents will be up to 41 weeks (in the case of giving birth to one child in one birth) or up to 43 weeks (in the case of multiple births), and nine weeks of this leave will not be transferable to the other employee-parent. A significant novelty is the extension of parental leave (from 32/34 weeks to 41/43 weeks) and the introduction of a non-transferable part of this leave. Changes should also be expected as regards the amount of maternity allowance for the period of parental leave. Pursuant to the draft law, for the whole period of parental leave this allowance will amount, as a rule, to 70% of the basis of the allowance assessment, however, in the case of submission by the employee of an appropriate application no later than 21 days after childbirth, the monthly allowance for the period of maternity leave, leave on the terms of maternity leave and parental leave will amount to 81.5% of the basis of the allowance assessment. In every case, an employee who has fathered a child will be entitled to an allowance amounting to 70% of the basis of the allowance assessment for the period of the non-transferable 9-week part of the leave. Also in the case of not using up a single day of maternity allowance for the period of parental leave in the first year of the child's life, the allowance will be equal to 70% of the basis of assessment.

Paternity leave

The Work-life Balance Directive requires that fathers or equivalent second parents (under Polish law, the requirement pertains only to fathers) be entitled in principle to paid paternity leave of 10 working days on the occasion of the birth of the employee's child (irrespective of the employee's previous employment history and length of service or marital or family status). This regulation is known under Polish law, which provides for paternity leave of up to two weeks for an employed father bringing up a child. The draft law implementing the Work-life Balance Directive provides primarily for a reduction in the period in which it will be possible to take paternity leave - from 24 to 12 months from the day on which the child is born. The period will be respectively shortened in the case of adoption of a child at a statutory age.

Flexible organisation of working time

The Directive also foresees the need for employees with children aged at least up to eight years to be able to request flexible working arrangements (including through the use of remote working, flexible work schedules or reduced working hours) in order to provide child care. This right is also to be given to carers, i.e. employees providing personal care or support to a relative or person living with the employee in the same household, who requires substantial care or support on significant medical grounds. The Work-life BalanceDirective presumes that employers will consider and respond to such requests within a reasonable time, taking into account both their needs and those of the employee. It is also important that employers give reasons for their decision to refuse or postpone such work arrangements. This regulation is intended to encourage employees who are parents and carers to remain in the labour market, also by adapting their work schedules to their personal needs and preferences in a way that enables them to provide care.

It should be recalled that the tools for flexible organisation of work are known on the grounds of the Polish Labour Code and are often used by employers (e.g. telework, individual schedule of working time or combining parental leave with work). The draft law assumes the possibility of a wider application of flexible organisation of work understood as telework, the system of interrupted working time, shortened working week and weekend work, flexible schedule of working time (flexitime and individual working time) and reduction of working time. The possibility of requesting flexible working arrangements is to be granted primarily to employees caring for a child under aged under eight years.

From the employer’s point of view, it is important that the draft law requires employers to provide a statement of reasons, in particular when refusing a request for flexible working arrangements submitted by the above-mentioned persons.

Protection

The Directive provides for the protection of employees in the event of the exercise of rights relating to leave under the Directive or flexible working arrangements. This includes, above all, protection against discrimination and unfavourable treatment, or against dismissal and preparations for such dismissal. National legislation should also provide for a favourable distribution of the burden of proof in cases of such dismissal, which will consequently make it easier for employees to pursue claims against their employer. Employees are also to be protected against negative treatment by the employer or negative consequences resulting from an internal complaint or court proceedings to enforce the granted rights. The draft law implementing the Work-life BalanceDirective provides for the introduction of protective instruments.

Are we ready for change?

The discussed regulations are selected standards - it seems that they are the most important from the perspective of Polish employers - formulated in the Directive and juxtaposed with the expected changes in Polish regulations. According to the information displayed on the Government Legislation Centre website, work on the draft law is in progress and the draft has not yet been referred to the lower house. The scope and shape of the proposed regulations implementing the Directive in Poland may therefore be subject to change.

There is still some time before the Work-life Balance Directive is implemented in the Polish legal system, but it is already worth following the social trend and building an organisational culture related to parental equality and work-life balance for employees. A tool for this can be the development of internal policies, conducting dialogue and creating an atmosphere of comfort and understanding for both parents' desire to fulfil their role as parents and their ambitions to achieve their professional goals. As a result, employees will be more motivated, productive and connected to their employer, which is a clear benefit for the latter.

Before the date of implementation of the Work-life Balance Directive, it will be necessary to review the work regulations and internal procedures that deal with the issues regulated by the Directive and adapt them to the amended legal situation.

Joanna Dudek

[1] The deadline for implementing the provisions on payment of part of parental leave will be 2 August 2024.