TIME OFF DUE TO FORCE MAJEURE

In April 2023, a new type of exemption from work, the so-called “force majeure” exemption, was introduced into the Labor Code. After more than a year of the new regulations, their interpretation still raises doubts from both employees and employers. We invite you to read our article, where we try to bring you closer to the most important aspects of this institution.

Formal conditions

Taking time off from work due to force majeure is a condition of force majeure for urgent family matters caused by illness or accident, if the employee’s immediate presence is necessary.

Force majeure exemption is granted to each employee for either 2 days or 16 hours. The manner in which this exemption is used is chosen by the employee when he first applies. For the period of this exemption, the employee retains the right to be paid half salary.

The employer is obliged to grant the employee the requested amount of time off upon request made no later than the day on which the leave is taken.

The provisions of the Labor Code do not specify the form required for submitting a request, so it should be assumed that any form (e-mail, SMS, telephone) is acceptable. If the employee submits the request in writing, it should be kept in the rest of the documentation in the working time section, and not in the personnel file.

Conditions for applying time off due to force majeure

The key to determine the applicability of the exemption is the interpretation of the concept of force majeure. The Labor Code does not define this concept, which raises many questions of interpretation. The vast majority of doctrine in the search for interpretation refers to the civilian concept of force majeure, understood as an extraordinary external event that cannot be foreseen, as well as – even with the exercise of utmost diligence – its effects cannot be prevented (see the resolution of the Supreme Court of 13.12.2007, III CZP 100/07). In this approach, force majeure will be understood in particular as the action of natural forces – hurricanes, floods, etc.

The second view presented by part of the doctrine indicates that, taking into account the purposive interpretation, the only reasonable solution that realizes the premise of the EU directive introducing such a form of exemption from work is to assume that the provisions of the Labor Code introduce their own concept of force majeure in this regard, detached, to some extent, from the civilian one. It should therefore be assumed that also the culpable action of the employee or a member of his family resulting, for example, in an accident or illness, will constitute a condition for the use of the exemption in question. This means, therefore, that even if, as a result of the recklessness of the employee’s parent, there is an event that results in the child’s illness, this event constitutes grounds for not showing up for work.

Regardless of the employer’s choice of a broader or narrower interpretation of the concept of force majeure, it is invariably the case at present that the other conditions must also be met, i.e. that the event must be related to family matters (in broad terms, including extended family and informal relationships) and require the presence of the employee.

If an employee, on his way to work, encounters difficulties related to, for example, a strike or blockade of the only access road to the workplace, this event meets the characteristics of force majeure, but due to the lack of correlation with the employee’s family situation, this situation will not qualify as a basis for applying force majeure time off.

Does the employee have to justify his request?

The essence of force majeure exemption is an emergency event and related to the employee’s family situation. Due to the special nature of the basis for the use of this exemption, the employer is not entitled to require the employee to provide detailed documentation of his request. This means, therefore, that in analyzing the application submitted by the employee, the employer must rely solely on the employee’s statement of reasons for exercising this entitlement.

Bearing in mind the position presented by the State Labor Inspectorate in the view of the employee’s right to privacy, the employer cannot expect the employee to identify a family member who is affected by the event requiring the employee’s presence.

If you have any additional questions related to the rules for employees’ time-off use or excusing employee absences, please feel free to contact our specialists.