Order responsibility for the lack of a mask at work

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Risks related to the state of the epidemic of the SARS-CoV-2 virus causing the COVID-19 disease necessitate the use of extraordinary protective and preventive measures in workplaces. What is order liability in the workplace and how does it affect the obligation to disinfect and cover the nose and mouth in the workplace?

Order to cover mouth and nose

Due to the presence of an epidemic in the territory of the Republic of Poland caused by SARS-CoV-2 virus infections, the requirement to cover the mouth and nose with clothing or its part, mask, face mask, visor or protective helmet is mandatory in workplaces, if there is more than one person in the room, unless the employer decides otherwise (§ 27 (1) (2) (c) of the Regulation of the Council of Ministers of December 21, 2020 on the establishment of certain restrictions, orders and bans in connection with the occurrence of an epidemic - hereinafter "the Regulation").

When does the order not apply?

However, this order does not apply in the cases specifically provided for in the Regulation, and in particular with regard to a person who cannot cover his mouth or nose because of:

  • pervasive developmental disorders, mental disorders, moderate, severe or profound intellectual disability;
  • Difficulty in covering or uncovering your mouth or nose on your own

- which should be confirmed by a medical certificate or other document.

Employee's obligations in the field of health and safety

In this context, it is worth noting that - pursuant to Art. 100 § 2 point 3 of the Labor Code - the basic duties of an employee include compliance with the provisions and principles of occupational health and safety. Comprehensive regulations in this regard are included in the tenth section of the Labor Code and in the implementing provisions to the Code.

Undoubtedly, the regulation in the field of occupational health and safety is also the norm cited at the beginning regarding the order to cover the mouth and nose in workplaces.

Wearing disposable gloves or hand sanitizing

Workplaces are also obliged to provide employees, regardless of the basis of employment, with disposable gloves or means for disinfecting hands. On the other hand, the obligation for all employees and the use of the aforementioned safeguards in each workplace has not been explicitly established (such obligations may result from specific provisions relating to specific industries, e.g. health care). Thus, a given employer may require employees to use disposable gloves or hand disinfectants, if an order in this regard has been introduced.

The employer's responsibility for the health and safety at the workplace

Pursuant to Art. 207 of the Labor Code, the employer is responsible for the health and safety at work in the workplace. It is obliged to protect the health and life of employees by ensuring safe and hygienic working conditions with the appropriate use of the achievements of science and technology. Thus, enforcing compliance with the provisions and principles of health and safety at work from employees is not only the right, but also the employer's responsibility.

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Employee's orderly responsibility

Order responsibility is used to maintain order and proper organization of work in the workplace. It differs from financial liability, the purpose of which is to obtain compensation by the employer in connection with the damage suffered by the employee as a result of non-performance or improper performance of official duties.

For non-compliance by an employee with the established organization and order in the work process, occupational health and safety regulations, fire regulations, as well as the adopted method of confirming the arrival and presence at work and justifying the absence from work, the employer may apply:

  • a reprimand,
  • punishment of reprimand.

However, for non-compliance with occupational health and safety or fire regulations, leaving work without justification, showing up for work under the influence of alcohol or drinking alcohol while working - the employer may also apply a fine. The fine for one violation and for each day of unexcused absence may not be higher than the employee's one-day salary, and the total amount of the fines may not exceed one tenth of the employee's remuneration to be paid, after the deductions referred to in Art. 87 § 1 items 1-3 of the Labor Code. The proceeds from the fines are allocated to the improvement of health and safety conditions at work.

Order responsibility and non-compliance with the orders regarding protection against the SARS-CoV-2 virus

Both breach of the mouth and nose coverage order and the use of disposable gloves or hand disinfectants (if the latter has been issued in a given facility) should be considered as non-compliance with occupational health and safety regulations. In such circumstances, the employer may impose one of the three above-mentioned sanctions against the employee.

A reprimand is considered to be the mildest. However, the employer may immediately apply a reprimand (it does not have to be preceded by a warning). An employee can also be fined immediately. When applying the penalty, account should be taken, in particular, of the type of breach of employee duties, the degree of the employee's fault and his or her previous relationship to work.

Principle of immediate penalty

The nature of the liability of order as a disciplinary measure for employees suggests that the penalty should be imposed as soon as possible after the breach of employee duties. Pursuant to Art. 109 § 1 of the Labor Code, the penalty may not be applied after 2 weeks from becoming aware of a breach of the employee obligation and after 3 months from committing this breach.

Example 1.

The employer noted on January 11 that an employee working in a room where two other people work did not cover his mouth or nose, contrary to the applicable order. When asked about the reason for such behavior, the employee replied that he did not comply with the order, as he believed that it did not prevent the spread of infections and therefore would not comply with it. The employer, recognizing that the employee violates the applicable health and safety regulations, considers punishing him with an order penalty. Since the violation of the order took place on January 11 and the employer learned about the violation on that day, he has 2 weeks to make a decision on punishing the employee, i.e. the penalty may be applied no later than January 25. After that date, the right to impose the penalty will expire (it will not be able to be effectively imposed on the employee).

Listening to the employee

The penalty may only be applied after hearing the employee. If, due to absence from the workplace, the employee cannot be heard, the two-week period for applying the penalty does not start, and the period that started is suspended until the employee comes to work (Article 109 § 1 and § 2 of the Labor Code). In the example presented above, the employer listened to the employee, thus fulfilling his obligation for the lawful application of the penalty of order.

Notification of the penalty applied, appeal proceedings, blurring of the penalty

The employer must notify the employee of the penalty applied in writing, indicating the nature of the breach of employee duties and the date on which the employee committed the breach, and informing him of the right to raise an objection and the date of its submission. If, in the opinion of the employee, the application of the penalty occurred in violation of the law, he may raise an objection to the employer, and in the event of failure to do so - apply to the labor court to revoke the penalty applied to him (Articles 110 and 112 of the Labor Code).

The penalty is obliterated, i.e. it is considered void, and the copy of the penalty notice is removed from the employee's personal files after one year of impeccable work. The employer may, on his own initiative or at the request of the company trade union representing the employee, consider the penalty void before the expiry of this period (Art. 113 of the Labor Code).

The employer's right to hold employees, in justified cases, responsible for order should not be treated as the main instrument of employee management. Usually, the use of positive motivation tools gives better results. However, in some cases sanctions are a necessary measure of influencing employees - when there are significant violations of their duties. Therefore, it is the responsibility of order to maintain order and proper organization of work in the workplace. This applies in particular to compliance with health and safety regulations, including those relating to protection against threats caused by the epidemic.