Unlike those in quarantine, the situation of people in domestic isolation has not yet been regulated.
It should be clarified that we are talking about home isolation in relation to a person with an infectious disease, while not having to be hospitalised. Quarantine, on the other hand, affects healthy people who have been exposed to infection.
Regulation of the Minister of Health of 6 April 2020 (updated) clarifies that mandatory isolation or isolation under home conditions is subject to persons with known infection SARS-CoV-2 or disease COVID-19, and suspected infection or illness for which no compulsory hospitalisation was used.
The purposeful interpretation of the provisions introduced would indicate that a worker in isolation should not provide work, since such worker is treated as unfit for work
When examining the current regulations concerning the situation of workers in connection with domestic isolation, it should be stated that the possibility of providing work from home to persons subject to insulation is at the risk of the employer.
Act of 28 October 2020 amending certain laws in relation to the prevention of crisis situations related to occurrence COVID-19 introduces substantial changes to the Social Security Cash Benefits Act in the event of sickness and maternity, i.e. a new definition of disease-related incapacity (Article 6(2)).
In the new wording, such a situation is, among other things, the inability to carry out work as a result of being subject to quarantine, home isolation or isolation as referred to in the rules on prevention and control of infections and infectious diseases in humans.
This change is clearly dictated by the increasing number of diseases and the associated health and health failure. Under this law, L does not seem to be available for isolation.[4], and for the duration of quarantine, health inspection decision. Both cases are treated legally as incapacity to work.
However, the legislator introduced an exception to the above rule, consisting of the power to perform remote work, but only in case of quarantine. Under the new rules, workers and other staff employed under compulsory quarantine may work remotely with the employer's or employer's consent.
Quarantine workers will then not receive sickness pay or sickness benefit, but simply pay for work. The Act does not provide for an adequate possibility for persons subject to home isolation.
Therefore, performing remote work during isolation seems to be unauthorised within the meaning of the social security cash benefits Act in the event of sickness and maternity.
In such a situation, the agreement with the employee that during isolation he will work remotely, exposes the employer to risks associated with, inter alia, checks on labour inspections or subsequent claims of employees in the event that the Social Security Office refuses them the right to receive sickness pay or sickness benefit. The employee's consent to remote work in this case is irrational.
Therefore, if the employer directs the worker to remote work despite the domestic isolation of the worker, he bears the risk described above. The risk is also taken by the worker, as he may have a problem with the granting of sickness benefit when the symptoms of the disease occur later and he is no longer able to provide work.
An insured person who, during the period of incapacity for work or using dismissal in a way incompatible with the purpose of that dismissal, loses his entitlement to sickness benefit for the entire period of that dismissal.
Depriving the insured person of entitlement to the sickness allowance is carried out for all the time incapacity due to that cause.
In view of the above, the safest solution for both the employer and the worker in isolation will be to refrain from providing work during isolation due to the illness. In that case, the worker will be entitled to a sickness pay or sickness allowance.
On the other hand, However, it should be noted that there is currently no legal norm which would suggest that a worker suffering from COVID-19 has a ban on the provision of work, of course with the strict Sanitary regime and provided that his health permits it. The only obvious consequence is the loss of entitlement to sickness benefit, however, in the case of the provision of work, and so the worker should be paid for his work on a normal basis.
However, it should be noted that the purposeful interpretation of the provisions introduced would indicate that a worker in isolation should not be able to provide work, as such worker is treated as unfit for work. Thus, when deciding to provide work during an isolation period, an employee must expect that in the event of a sudden deterioration of the health condition, the Social Security Office will deny him the right to benefits for the entire period of incapacity for work.
Author: Michał Wasilenko
Lawyer, Senior Associate in the Legal Department, member of the Bar Association in Lublin, graduate of the Faculty of Law and Administration at Maria Curie-Skłodowska University in Lublin. He specializes in commercial and civil law law.