Covid-19 business criminal law and other issues in Poland

The measures taken to limit the spread of the COVID-19 virus consist, inter alia, of closing down various businesses or restricting their activities. Entities may be penalised if they do not comply with the restrictions imposed or with existing health and safety laws and regulations. Liability may be incurred by individuals (criminal and administrative) as well as by companies (administrative).

New Regulations with regard to the Criminal Exposure in relation to COVID-19

A number of Acts have been adopted in connection with COVID-19, but the most prominent are: (i) Act of 2 March 2020 on special arrangements for the prevention, counteraction and combating of COVID-19, other infectious diseases and crisis situations caused by them, and (ii) Ordinance of the Council of Ministers of 19 April 2020 on establishing certain restrictions, orders and prohibitions in connection with the occurrence of an epidemic state (“Ordinance”).

Certain categories of business must close down their operations entirely (such as cinemas, clubs, gyms, hotels or hairdressers) whilst the Ordinance is in force 1 . Other businesses, such as food retailers, pharmacies and banks, are permitted to continue operations (subject to certain limitations) 2 . Restrictions also apply to the functioning of religious and funeral establishments.

Police or municipal police officers may fine a person who violates the regulations up to PLN 500 (liability for a petty offence). A fine for breaching the regulations can be potentially issued to both the employee and the employer (depending on who violated the regulations). If a person refuses to accept the fine, the officer submits a motion to the relevant court for enforcement.

Notwithstanding the above, the health and safety executive may fine a person who violates the restrictions (administrative fine) an amount between 5,000 PLN and 30,000 PLN.

Health & Safety laws

Under the Polish Labour Code, employers are obliged to ensure the health and safety at work of their employees. On the basis of the Ordinance, additional requirements were imposed on employers. Employers must provide employees (regardless of the basis of employment) with disposable gloves or hand disinfectants and ensure a distance of at least 1.5 m between workstations, unless this is not possible due to the nature of the tasks carried out at the workplace. The workplace must also provide personal protective equipment related to the management of the COVID-19 risk. Depending on the nature of a given business, additional measures may be required to protect either the employees or the general public (e.g. a limit on the number of people allowed in a building, or providing hand disinfectants or gloves to customers).

In addition, certain measures not directly implemented by the new legislation may be required if it is necessary and prudent to ensure the health and safety of the employees. 

Failure to fulfil the obligation to implement the health and safety measures may result in criminal sanctions or sanctions for a “petty offence”, depending on the particular circumstances. As a rule, non-compliance alone, in accordance with specific rules implemented by the Ordinance, may be classified as a petty offence resulting in a fine of up to PLN 500 or a reprimand.

Heavier penalties may be imposed for breaches of general health and safety regulations in cases where either there has been a direct threat to the life or health of the employees or the general public, or where breaches have resulted in their death or illness. Failure to comply with obligations concerning health and safety at work (e.g. failure to provide protective gloves) or other safety standards, in particular by allowing employees who show signs of COVID-19 or other infectious diseases to work, can therefore potentially result in criminal sanctions, including imprisonment. 

If actions or omissions result in a direct threat to life or the threat of a life-threatening illness, the persons responsible may face up to 3 years imprisonment. However, if the threat concerns a number of persons and could result in a spread of the epidemic, the sanctions may be even more severe (up to 8 years). If a person dies or becomes ill due to a failure to fulfil health and safety obligations, the sanctions can be even more severe (up to 12 years in the case of death or a life-threatening illness of a number of people).

It is important to note that the new legislation related to the COVID-19 pandemic increased the criminal sanctions for a person who, knowing that he/she is infected with an infectious, life-threatening disease, exposes a number of persons to the risk of infection (up to 10 years imprisonment). Persons acting on behalf of the employer of the infected person may potentially be charged with aiding or abetting, e.g. if they knew about the infection and yet allowed the infected person to work and expose other employees to infection.

As mentioned above, businesses will not be criminally liable for the exposure or risk of exposure to COVID-19. Criminal liability in such cases may be borne only by individuals. 

Considering the broad range of health and safety obligations, persons responsible for health and safety, lower management (e.g. an immediate superior who, contrary to the rules, allows a sick person to work) and senior management may face criminal liability, depending on the particular circumstances. The risk of senior management or other company representatives being held responsible will increase if a violation of the regulations or health and safety standards at work is the result of an instruction from the manager.

Likewise, fines may be imposed on senior management or other company representatives by the health and safety executive.

As at the date of publication, the media have reported the first cases of fines being issued by police and fines imposed by the health and safety executive. According to the above-mentioned press releases, the administrative fines often reach the upper limit, i.e. PLN 30,000.

The penalties imposed so far have mainly concerned non-compliance with the rules on covering the mouth and nose. However, during the time the Ordinance has been in force, the police and authorities have imposed penalties for a number of attempts to circumvent the rules of order. One such case was the delivery of a mobile cash register to a shop, which was supposed to increase the number of customers who could be in the shop at the same time (the number of customers at that time depended on the number of cash registers in the shop). 

In practice fines are issued to employers who, despite the restrictions introduced, have not closed down their workplaces or have not complied with other Ordinance regulations. The media have also reported cases of prosecutors presenting charges of creating an epidemic threat (subject to imprisonment of up to 8 years) to a business owner who organised a party in a club after the Ordinance prohibiting such activity had been issued.

The measures introduced in connection with these provisions are varied. They include equipping the employer with new rights, introducing additional protective measures for employees and limiting the number of customers. 

In order to counteract COVID-19, the employer may instruct the employee to perform, for a fixed period of time, the work specified in the contract of employment outside the place of its permanent performance (the so-called home office).

As already mentioned, workplaces must provide employees with disposable gloves or hand disinfectants and ensure a distance of at least 1.5 m between workstations, unless this is not possible due to the nature of the tasks carried out at the workplace and the employer must also provide personal protective equipment related to the COVID-19 epidemic. At the same time, there is an obligation to cover the mouth and nose with clothing or parts of clothing, for example with a mask, face mask, visor or safety helmet when in the workplace.

Some industries have reduced the number of customers allowed in the premises. The Ordinance has introduced restrictions whereby no more than 1 person per 15 m2 may be in the shops. After an earlier total shutdown of hotel operations, hotels can again operate from 4 May 2020. However, this is still subject to certain restrictions. The opening of hotel restaurants for guests has been restricted. However, the restriction does not apply the serving of food or beverages for takeaway or their preparation and delivery to rooms.

The Ordinance does not specify penalties for a breach of the above obligations, so it can be argued that breaching them is punishable as a failure to ensure proper health and safety at work (see above). At the same time, a violation of these provisions the health and safety executive to impose a fine, the amount varying from 5,000 to 30,000 PLN. 

Businesses in Poland could also be facing civil claims resulting from the circumstances created by the COVID-19 pandemic. Due to an array of different scenarios it is impossible to catalogue all possible claims but we outline here certain categories of claims and related risks. In particular, claims could be brought by employees, customers or business partners. These claims could arise as a result of measures undertaken during the pandemic (salary cuts and limiting of production for example) or as an indirect result of non-compliance with the restrictions and regulatory requirements outlined above (damages for medical expenses, etc.).

Claims by staff relating to unsafe working conditions

Most obviously at risk are entities which have continued to operate during the lockdown and businesses where employees have continued to operate from their normal place of work, such as food retailers, the construction industry and distributors of online shopping. Employees may argue that they have suffered mental health issues and stress as a result of having to attend work (including via public transport with its own inherent risks) and have therefore exposed themselves (and, vicariously, their families) to the virus. Whether this level of exposure and stress would be redressable would be for the courts to decide. Finally, a person or an entity could have recourse to the company in respect of medical expenses. For either claim to be successful there must be a certain degree of negligence on the part of the employer. Employees could argue that they should have been provided with some or better personal protective equipment; or be given better training; and/or their workplace should have been adjusted to create more distance between employees. For those that can demonstrate that they contracted the virus through work, the risk of claims for substantial damages will arise.

Claims connected with the transmission of Covid-19 are likely to raise complex questions of causation. For each case, there could be numerous potential infection sources. A lot here depends on the judicial discretion: whether the courts would refer to the prima facie evidence principle that is often relied on in medical cases or rely on reasonable inferences (e.g. if the person can show limited exposure to the virus, except for his/her workplace). The risk of transmission and thus the risk of liability can be mitigated by prudent adjustments to the workplace and encouraging social distancing. If all the precautionary measures are in place, it would be harder to demonstrate either causality or negligence.

Claims by members of the public 

Such claims may be based in contract, tort, or otherwise. Customers could argue that they were subjected to unsafe conditions. This is a particular concern for businesses that provide in-person services that are still allowed or will be allowed in subsequent phases of the reopening of Polish economy. This includes entertainment venues, hospitality, transport, leisure and tourism. The evidentiary hurdles could be greater in such cases compared to employee-employer claims, since potential harm would have to be linked to a particular business. The company could argue that the customer contributed to the harm if his/her own behaviour was contrary to the safety measures (e.g. lack of protective mask or refusal to disinfect hands).

Collective redress

Many of the events that could lead to claims by employees or customers will be particularly suited to collective proceedings or class actions. These are still relatively unpopular in Poland due to the procedural hurdles connected with the process. However, many of those were removed in 2017 with legislation aimed at speeding up the procedure. The number of claimants would have to be at least 10. Not all the employees’ claims can be referred to class (e.g. claims resulting from unlawful testing). Class actions could, however, include claims for pain and suffering resulting from injury or sickness. Whether a particular claim could be brought as a part of class action and whether the facts warrant their joint examination will depend on the particular circumstances of each case.