Many employers waited with interest for the law on assistance to citizens of Ukraine in connection with the armed conflict on the territory of that country. In addition to simplifying procedures related to the legalization of stay of refugees from war-stricken Ukraine, defining the rules of access to social benefits and medical assistance, the new law aims, among others, also to facilitate the employment of those people who, although they usually do not speak Polish, may become valuable and desirable employees.
The act on assistance for Ukrainian citizens has also introduced, in a way, two parallel systems of employing foreigners: the first one in force until now and the second one resulting from the provisions of the new act and pertaining almost exclusively to Ukrainian citizens.
So what has the Law on Aid to Citizens of Ukraine made easier and what should you pay special attention to when hiring an employee from Ukraine? In the following explanations, we will try to highlight some basic issues related to the employment of people who found themselves and are staying on the territory of Poland due to the war in Ukraine.
How does the special law change the rules of employing Ukrainian workers?
In each case, the basis for legal employment of a foreigner is a confirmation of the legality of his/her stay in Poland. The new law has significantly simplified the issue of legalizing the stay of Ukrainian citizens and certain other persons, in particular those who entered Poland in connection with the warfare, i.e. on or after 24 February 2022.
Citizens of Ukraine who are war refugees
Thus, the stay of a Ukrainian citizen who entered the territory of Poland directly from Ukraine in connection with the hostilities i.e. 24 February 2022 or later and declares his intention to stay on the territory of Poland (and has not left Poland for a period longer than one month) is considered legal for a period of 18 months, counting from 24 February 2022, i.e. until 24 August 2023.
Refugees without Ukrainian citizenship
The same rule applies, inter alia, to spouses of Ukrainian nationals who are citizens of countries other than Ukraine if they arrived in Poland in the aforementioned period directly from the territory of Ukraine, as well as to Ukrainian nationals who hold the Card of the Pole and their immediate family members if they left Ukraine on 24 February 2022 or later, but arrived in Poland from a country other than Ukraine. It should not be forgotten that the above mentioned rules do not apply to persons who have applied for refugee status in Poland or have declared their intention to do so, unless they have withdrawn their application or declaration, which they are entitled to do, and that the Council of Ministers has the right to determine, by way of a regulation, the date which is the last day of the period in which the entry into the territory of Poland results in the stay of the above mentioned persons being recognized as legal until 24 August 2023.
However, citizens of countries other than Ukraine legalize their stay under the current rules, even if they arrived in Poland crossing the Polish-Ukrainian border on 24 February 2022 or later.
Employees arriving to Poland before 24 February
The above special rules for legalization of stay do not apply to Ukrainian citizens who entered Poland before 24 February 2022 or entered from a country other than Ukraine. However, those persons in some cases will also be able to benefit from certain facilitations in legalizing their stay. For example, Ukrainian citizens for whom the last day of stay in Poland on the basis of a national visa or temporary residence falls on 24 February 2022 or later will benefit from automatic visa extension until 31 December 2022.
How to check whether the employment of a given Ukrainian employee under the terms of the Act is legal?
Foreign nationals of other nationalities, who have the right to legal residence in Poland, can be employed under the current legislation. Also in the case of Ukrainian nationals with a permanent residence permit, a residence permit for a long-term resident or with refugee status, the rules of residence and work in Poland do not change.
While employing a Ukrainian citizen under the simplified rules arising from the provisions of the new act, it will be necessary to verify each time whether a given Ukrainian citizen is entitled to benefit from the abovementioned facilitations in access to the labour market. In the case of persons arriving from Ukraine to Poland on 24 February 2022 or later, the basis will be, as it seems, the stamp of crossing the border in the required time. If, however, the prospective employee does not have such a stamp in his/her travel document, he/she should register his/her entry in the municipality or city office within 60 days from the date of entry into Poland (previously, such confirmation should have been made at the Border Guard post). However, other cases will require a more thorough check.
Of course, it will not always be possible to employ workers as simply as described above. In professions that require specific qualifications, regulated professions or professions that require fluency in the Polish language, it will not be sufficient to enter Poland from Ukraine within a certain period of time. However, the new act has introduced certain facilitations here as well. This applies, inter alia, to medical professions such as doctors, dentists, nurses and midwives, for whom a possibility of granting them a conditional right to practice their professions has been envisaged, if they obtained their qualifications outside the territory of European Union Member States (and regardless of the duration of an epidemic threat – until now such exclusion was established in connection with this threat). Other simplifications are also envisaged for educators, psychologists and child carers.
How to legalize employment of an employee from Ukraine?
The persons to whom facilitations were introduced in order to legalize their stay, also benefit from a simplified procedure for legalization of employment. This procedure has been limited only to the obligation of the employer to notify the competent district labor office within 14 days about commissioning work to a Ukrainian citizen. The employer is obliged to make such notification via ICT system (there is no possibility to make a notification in writing) via website: praca.gov.pl, and the lack of such notification (or delay in its submission) results in recognition that the work is not legal with all consequences.
The simplified procedure for legalization of employment described above may also be used by citizens of Ukraine who are already staying in the territory of the Republic of Poland on the basis of some other residence titles (e.g. in connection with crossing the border before 24 February 2022). These persons will also be able to continue working legally in Poland, since their right to legal residence in Poland has been extended, as it is the case of the above mentioned extension by law of the residence of a Ukrainian citizen on the basis of a national visa or temporary residence ending on or after 24 February 2022.
Employment contract with a refugee in light of the Act. What conditions must be ensured?
When employing Ukrainian workers on the basis of an employment contract under the new Act, it must also be remembered that the Act does not change the general principle that the employer employing a foreigner is obliged to comply with the same regulations regarding working conditions and wages as in the case of Polish citizens. The possibility of employing a refugee from Ukraine does not release the employer from the need to comply with regulations on working time, remuneration, holiday leaves and other conditions arising from the mandatory provisions of the labor law, including regulations on ensuring safe and hygienic working conditions, the need to carry out medical examinations admitting to work on a particular position or to complete required safety training.
In this context, problems in communication with the employee may arise due to unfamiliarity or insufficient knowledge of the Polish language to communicate freely with the Polish employer. Therefore it is important to prepare all documents for the employee, or training courses in a language that he understands, which unfortunately may sometimes generate additional costs and difficulties.
How to draw up the employment contract?
The employment contract (and other documents arising from the scope of employment law, e.g. information on conditions of employment) should be drawn up and signed in a dual language version (in Polish and another language understandable for the employee, which does not have to be his mother tongue). Polish law generally requires, on the one hand, that the employment contract, which is to be performed in Poland by a person residing in its territory at the time of conclusion, be drawn up in Polish, and on the other hand imposes the obligation to provide the foreigner, before signing the contract, with its translation into a language that he/she understands. Therefore, drawing up a contract in two language versions will allow to avoid explanations and the necessity to prove that this obligation was fulfilled.
Employment without a PESEL
Finally, it is worth mentioning, as it is not clear to everyone, that the employment on the basis of an employment contract of a refugee from Ukraine under the new law does not require the PESEL number. In the information provided to the employment office, this number is given, but only if it has been issued, otherwise the employer is not obliged to give it and should not make the employment of a Ukrainian citizen conditional on having this number. However, it is worth making a potential employee aware of the importance of obtaining this number as it is necessary, among other things, in order to receive social benefits and medical care provided for in the new act, it enables receiving access to a trusted profile which facilitates dealing with a number of administrative matters without the necessity of appearing in person in the office.
It is also worth mentioning that the new act not only facilitates the employment of Ukrainian citizens in an employment relationship, but also gives the possibility to conduct business activity by citizens of Ukraine legally residing in the territory of Poland both on the basis of the new act and the existing rules resulting from the Act on foreigners, which opens another opportunity to establish cooperation with Ukrainian citizens. However, the registration of business activity by a citizen of Ukraine is conditional on obtaining a PESEL number. In case of losing the right to legal residence in Poland, the entrepreneur from Ukraine will be deleted from the register of economic activity.
Citizens of Ukraine have long been one of the most numerous groups of foreigners working in Poland. The current situation in Ukraine will have a significant impact on increasing their participation in the Polish labour market, even if in many cases – especially in professions requiring high and confirmed by relevant documents qualifications and good knowledge of the Polish language – this process will not be fast. Certainly, however, where the requirements are lower or the knowledge of the Polish language is not essential, the new act will somewhat facilitate and accelerate the pace of employment of Ukrainian citizens in Poland.
Author: Ewa Bieniak, legal adviser at act BSWW legal & tax