The provisions of the Labour Code state that the extension of the contract with a pregnant foreigner until the day of childbirth does not entail an extension of the work permit. In that case, a request for renewal should be made.
Act dated 7 April 2017 amending the Act on the employment of temporary staff and certain other laws (Journal of Laws of 2017, item 962) had in its assumptions, among others, increased protection of the rights of temporary workers by limiting the period of employment of temporary workers to a maximum of 18 months in the following months 36 months, the obligation to present clear remuneration rules and the obligation to keep records of working time in paper and electronic form. An important change was also made to foreign workers who were pregnant.
Extension of the contract with a pregnant worker
Workers of a pregnant foreigner, a temporary employment contract is extended until the day of childbirth, when the total period of referral to work is the minimum 2 months and the contract would be terminated after 3 months of pregnancy. This is due to the recipe Article 13(3) Act dated 9 July 2003 on the hiring of temporary staff, according to which to temporary staff having a total of at least 2-the monthly period of the temporary agency's assignment to perform the temporary work on the basis of the employment contract shall apply Article 177(3) The Labour Code, and this provision, in turn, provides that a contract of employment concluded for a fixed period or for a trial period exceeding one month which would have been terminated after third is prolonged until the day of delivery.
No work permit and pay
It turns out, however, that the fact that a contract with a pregnant foreigner is extended to the date of birth does not automatically mean that it will be able to provide work during that period in the event that its work permit expires.
The validity of the work permit has not been correlated with the existence of an employment contract until the day of delivery.
There may therefore be a situation where a pregnant foreigner will associate a contract of employment with the employer of the user, but in fact the employee will not be able to provide work because it will not have a valid work permit.
There is therefore a major problem with the fact that since the parties have established an employment relationship, the employee has undertaken to do a certain kind of work for and under the direction of the employer and at the place and time prescribed by the employer and the employer to employ the worker for remuneration.
However, without work permission, this relationship is distorted. According to Article 80 The labour code shall be paid for the work done. For the time of non-execution, the worker shall retain the right to pay only if the labour law so provides.
In the case of a pregnant foreigner who does not provide work due to the expiry of a work permit, but whose contract of employment lasts until the day of birth, the employer may refuse to pay the salary, as he has not been obliged to pay the foreigner remuneration for a period during which he will not actually provide the work due to lack of permission.
Sick leave favourable to employers and workers
In this situation, it cannot be excluded that, since the employment relationship lasts until the day of childbirth, the foreigner will benefit from medical leave and will remain on sick leave until the day of childbirth, which will allow her to obtain medical benefits and then acquire entitlement to maternity benefits.
The situation in which a foreigner will be on sick leave is not desirable from the point of view of the Social Security Office and the obligation to pay sickness benefits. However, it cannot be excluded that such a solution will also be used for employers.
Temporary work is usually physical and quite heavy work, so the risk to the employer that he may be charged with the use of workers of a pregnant foreigner may lead to employers themselves more likely to accept the path of sick leave of a pregnant foreigner than the risk that the work will adversely affect the pregnancy or even the loss of it.
However, if, in the event of the expiry of a work permit for a pregnant foreigner, both the employer and the employee were interested in further work, which would not endanger pregnancy, for example as cashier, then the employer or temporary work agency should apply for an extension of the work permit.
The application must be lodged with the provincial office no earlier than the time limit 90 days and no later than the time limit 30 the days before the expiry of the period of validity of the authorisation. A foreigner can also apply for residence and work permits herself.
Author:
Aleksandra Księżyk – Legal advisor, Director of the Legal Department in Warsaw Chancellery Russell Bedford Dmowski and Partners Law Firm sp. k.