Carer’s leave was introduced into the Labour Code on 26 April 2023 by the Act amending the Labour Code (LC) and certain other acts of 9 March 2023. The Act was intended to introduce two directives into Polish law:
- Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union
- Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU.
Directive 2019/1158 aims to promote equality between men and women in the labour market, ensure equal treatment in the workplace and make it easier for employees (parents and carers) to reconcile family life with work. Under its provisions, employees are entitled to paternity leave, parental leave, carer’s leave and flexible working arrangements if they are parents or carers.
Provisions on carer’s leave were introduced into the LC in Chapter Ia (Articles 1731 – 1733). Employees are entitled to five days of leave per calendar year, which are counted as working days according to their established work schedule (Article 1731 § 1 and § 3 LC). The leave can be taken all at once or in instalments. Unlike other types of leave, such as annual leave (Article 154 § 2 LC), carer’s leave is not reduced in proportion to working hours (e.g. for part-time employees). In addition, there is no consequent limit to the number of hours of leave (which is also the case for annual leave – Article 154 § 2 LC), so the annual carer’s leave is always five working days, regardless of the number of hours the employee works or working on a part-time basis. This manner of regulation is due to the purpose of the leave (care or support for those who require it for serious medical reasons) and the fact that this time is not remunerated.
As previously mentioned, carer’s leave is intended to provide care or support to a person who is a member of the family or who resides in the same household and who requires care or support for serious medical reasons (Article 1731 § 1 LC). Family members are defined as the son, daughter, mother, father or spouse of the employee (Article 1731 § 2 LC). Although this limitation might appear to be too restrictive (it does not include, e.g. grandparents, who often need medical care due to old age), the extension of the provision to persons living with the employee in the same household partially solves this issue. Problems may arise from the lack of a clear definition of “serious medical reasons”. Both the Act and the Directive do not specify how the term is to be understood. Presumably, the scope of this provision will be a cause of disputes between employees applying for leave and employers, and, therefore, future case law may partly clarify the concept.
An application for care leave must be submitted in writing or electronically no later than one day prior to the start of the leave (Article 1731 § 4 LC). The original deadline in the draft amendment was three days. Reducing the period to one day appears appropriate, as it better reflects the nature of this leave (medical emergencies often occur suddenly, so waiting three days would often defeat the purpose of this regulation). The application should specify details of the person who requires care or support, such as their name, the nature of their relationship to the employee, in the case of a family member, their residential address, in the case of a non-family member, and the reason for the need for personal care (Article 1731 § 5 LC). However, it is not necessary to provide details of the health condition or to attach a medical certificate.
As already mentioned, according to Article 80 LC, carer’s leave is unpaid. However, the period of this leave counts as part of the period of employment that determines an employee’s rights (Article 1732 LC). Article 1733 LC refers to Article 177 § 1, 11, 4 and 41 LC, which guarantees an employee taking carer’s leave protection against employment termination from the date application is made for the leave (but not earlier than one day before starting use of the leave) until the end of the leave.
The employer also cannot prepare to give notice or terminate the employment contract without notice during this time. However, there are two exceptions to this rule: when there are reasons for termination without notice due to the employee’s fault and when the employer is declared bankrupt or liquidated. In both these situations, the consent of the trade union representing the employee is required (Article 177 § 1 (2) and § 4 in conjunction with Article 1733 LC).
Article 1733 LC also refers to Article 1864 LC, according to which, at the end of the carer’s leave, the employee should be allowed to work in the same position or, if this is not possible, in a position equivalent to the one in which he or she worked before the leave began. The introduction of this regulation may seem irrelevant given the short duration of care leave (Article 1864 LC refers to the situation after returning from long-term leave such as parental leave, which can last up to 36 months). In addition, such reference may be questionable, as the law does not provide for it in other situations where an employee returns after a period of absence (e.g. after annual leave).
An employee who is entitled to apply for carer’s leave is also entitled to flexible working hours (Article 1881 in conjunction with Article 1733 LC).
Carer’s leave is undoubtedly beneficial for employees and will promote the reconciliation of family and professional obligations. On the other hand, one may have reservations about the lack of complete determination of the rules for use of this leave, which may result in doubts as to how the provisions of the Labour Code should be applied in this regard.
Marcin Wujczyk
