1. What are the key things that employers have to consider in relation to social distancing in the workplace, e.g. open plan or spacing of desks, use of shared equipment, limited access to communal facilities, canteen / restaurant, etc.?
If a partition cannot be used, an employer must organise the workplace in such a way that the distance between workstations is at least 1.5 metres. In the case of administration/office work, the desks in the room must be arranged in such a way that the closest (straight-line) distance between any two people is at least 1.5 metres.
Physical contact between employees (e.g. during meetings or breaks) should be limited as far as possible. Employees who can safely carry out their tasks themselves, and those who do not need any special equipment or stationary machines, should be isolated. For example, if possible, they could be assigned to a social room, canteen or meeting room (such rooms may need adaptation). If possible, the most vulnerable employees can be asked to work from home.
Meal breaks should be organised to limit the number of people who are in the canteen, social room, kitchen, bathroom or changing room at the same time. The use of toilets should be organised in a way that takes into account cleaning and disinfection schedules.
Employees should be instructed to keep their workstations clean. Waste bins should have plastic bags so that they can be emptied without having to touch the contents.
2. What key hygiene and/or infection prevention measures will employers have to take to ensure a safe workplace e.g. provision of adequate handwashing facilities, regular deep cleaning of offices, etc.?
There are many recommendations for employers, such as:
- promoting non-cash payments;
- promoting regular and thorough washing of hands with soap and water or their disinfection with an alcohol-based agent (minimum 60%);
- placing soap dispensers or other disinfectants in visible areas and making sure they are filled regularly;
- putting up notices in visible places about how to wash hands effectively; and
- disseminating health and safety information to employees.
The National Labour Inspectorate has also made recommendations about eliminating risks through the following:
- Technical measures: Collective protection measures, such as plexiglass enclosures, separation of workstations with partitions. Things that are easy to knock over, such as potted plants, or which pose an additional risk, should be avoided. If a partition cannot be used, additional space must be provided between employees (minimum distance of 1.5 metres). Work rooms should be ventilated efficiently and effectively.
- Organisational measures: For example, moving between workstations, increasing the duration and number of breaks, and directing only qualified employees to carry out work.
- Personal protective equipment (PPE): For example, FFP2, FFP3 and N95 masks.
- Behavioural measures: For example, the employer monitoring employees’ compliance with management rules and guidelines, and supervising employees.
- Anti-epidemic actions: For example, providing disinfectants for hands and elements of the working environment, such as tabletops, handles, handrails, technical equipment (e.g. shared printers and copiers); increasing the frequency of cleaning working rooms, and especially toilets; and reminding employees about hygiene rules by putting practical information in visible places in the workplace.
3. Are there any specific obligations, liabilities or duties of conduct imposed on landlords, tenants or visitors with respect to the use or re-use and decontamination of premises; care, cleaning and maintenance of the exclusive and common areas; reporting requirements and/or measures in case of identified infections; health and safety issues - e.g. recommissioning water systems to avoid virus, installation of plexiglass screens, moving desks to comply with distancing. remodulation of fire prevention strategies (entrance/exit routes)? Is any distinction made between asset classes?
Retail or service facilities with a sale or service area exceeding 2,000 square meters and shops (including those located in a shopping centre with a service area exceeding 2,000 square meters) are obliged to provide disposable gloves or hand disinfectants and are required to disinfect their cash desks or service stations at least once an hour during opening hours.
Sales may be carried out at sales stands located in such retail or service facilities with a sale or service area exceeding 2,000 square meters if the sales stand meets the following conditions:
- presentation counters and cash desks are separated from customers by a plastic screen, with the staff covering their mouth and nose by means of a mask or visor and wearing disposable gloves when providing services to customers
- access to the inner part of the sales stand is restricted to its staff
- the sales stand serves one person at a time
- the staff provide disposable gloves or hand disinfectants to clients.
Moreover, employers are obliged to provide their employees, regardless of their basis of employment, with gloves or hand disinfectants and to ensure a distance of at least 1.5 metres between workstations, unless this is impossible due to the nature of the activity carried out in the given workplace.
Restaurants may operate with a limit of one client per 4 square meters of accessible area. According to government guidelines, restaurants must also ensure that:
- tables are disinfected after each client
- the distance between tables is 2 metres
- the distance between guests seated at separate tables is at least 1.5 metres
- all staff wear masks and gloves
4. Are there any rent suspension measures and/or stay of recourses and actions (including eviction) or any Government support initiatives such as a furloughed building grant scheme (if so, maybe only a part of the building should be re-occupied)? When rent suspension measures are available, what is the usual payment mechanism and timing agreed to by the parties?
During the period of the prohibition on conducting business activities in a commercial facility with a sales area exceeding 2,000 square meters, the mutual obligations of the parties under a lease, tenancy or other similar agreement under which commercial space is made available cease to be binding, subject to the submission of an unconditional offer by the landlord.
The majority of the restrictions regarding the conduct of business activities in commercial facilities with a sales area exceeding 2,000 square metres were lifted on 4 May 2020.
The term of lease agreements concluded before 31 March 2020 with an expiry date after 31 March 2020 and before 30 June 2020 is extended to 30 June 2020, subject to the submission of a request from the tenant. Pursuant to the Anti-Crisis Shield legislation, there are some situations where this extension does not apply, such as the tenant’s delay in payments or incorrect use of the premises.
As of 31 March 2020, the termination of a lease agreement or increase of the rent by the landlord is restricted until 30 June 2020. Pursuant to the Anti-Crisis Shield legislation, there are some situations where this restriction does not apply, such as a violation of the provisions of the lease agreement or laws relating to the manner of use of the premises, or the necessary demolition or repair of the building in which the premises are located.
5. Are there specific tax reliefs on payment or collection of rent instalments? Do they apply subject to actual payment or regardless? Do they apply generally or only to specific asset classes?
Municipal councils have been given the right to adopt a resolution on:
- releasing specific groups of enterprises, NGOs and public benefit organisations whose financial liquidity has worsened in connection with the COVID-19 pandemic from the payment of property tax for a part of 2020; and
- extending the date for the payment of property tax instalments payable.
The deadline for payment of the 2020 annual fee for perpetual usufruct has been moved from 31 March 2020 to 30 June 2020.
6. Are there any measures regarding relief from the performance of real estate-related contractual obligations?
In relation to the COVID-19 pandemic, no new measures have been introduced that may serve as relief from the performance of real estate-related contractual obligations – except for the “temporary expiry” of the obligations of the parties to some lease agreements for premises located in commercial facilities with a sales area exceeding 2,000 square meters. From 4 May 2020, the majority of the obligations that were temporarily expired are again in full force.
Relief from such obligations may be possible on the basis of the existing provisions of the Civil Code relating to force majeure, the impossibility of performing a service, or an extraordinary change in relations (rebus sic stantibus). However, each case should be examined on an individual basis in the light of the currently binding law and specific contractual provisions.
7. Are there any credit facilities in place to mitigate loss of income for landlords?
There are no specific credit facilities or other financial support dedicated to mitigate the loss of income for landlords. However, the Anti-Crisis Shield and the Financial Shield are helping to support liquidity generally among enterprises, helping them mitigate COVID-19-related disruption to their cashflows through loans, guarantees and other means, including non-repayable loans and grants. This support can also be used by landlords.
The support for enterprises facing financial difficulties due to COVID-19 provided by the Anti-Crisis Shield is constantly subject to amendments and additions. The government has recently adopted a draft act on the Anti-Crisis Shield 4.0, aimed at further counteracting the negative effects of the COVID-19 pandemic. The draft Act includes provisions introducing interest rate subsidies for bank loans granted to provide liquidity to enterprises affected by COVID-19
8. Is there any relief from loan repayments / enforcement of loans secured against properties?
The draft Anti-Crisis Shield 4.0 proposes, among other things, a suspension of the repayment of mortgage loans granted to consumers. During the suspension period, no interest shall accrue or fees be charged.
9. Are public services necessary to complete the sale, acquisition or other operation of real estate assets or companies or to establish the right to open for business (planning authorities, notary public, Land Registry, Companies’ Registry, etc.)?
As a rule, public services necessary to complete the sale, acquisition or other operation of real estate are still operational. However, due to the suspension of the passage of judicial and administrative deadlines for the period until 23 May 2020, and the implementation of numerous measures on social distancing, the work of these services has been significantly hampered or suspended.
10. Are there any specific processes or protocols available to consummate real estate operations enabling them to comply with any required social distancing (e.g. electronic signature, etc.)?
According to the provisions of the Civil Code, signing a document using a qualified electronic signature has the same effect as written form. However, no solution has been introduced to allow the signature to be provided in a form certified by a notary public or a notary public observing the principles of social distancing.
11. Are contractors who were carrying out works within the premises obliged to resume them? Can building sites reopen when they were closed down? Are there any specific provisions in relation to certain asset classes authorising continuation / resumption of works (e.g. healthcare structures)?
There are no restrictions on the performance of work by contractors.
12. Are there remedies or contractual arrangements available to address impossibility or delay for a party to handover premises to another which are/were to be constructed or refurbished, or for such other party to take over those premises?
An occupancy permit is no longer required for the construction of some buildings, as follows:
- structures falling into the categories indicated in Article 55 (1)(1) of the Building Law, and
- situations where the commencement of the occupancy of a structure is to take place before all of the works are carried out (Article 55 (1)(3) of the Building Law).
The parties to the contract may have included provisions relating to the delay in the handover of the premises due to force majeure. However, every agreement should be examined on case-by-case basis.
13. Has the duration of validity of administrative authorisations pertaining to development/construction of real estate assets (in particular planning authorisations) been extended?
The validity of administrative authorisations regarding the development/construction of real estate assets has not been extended.
Litigation and Regulation
14. Is the use of disclaimers for visitors or others coming on to the site of business useful for limiting potential future COVID-19 claims?
In most cases, disclaimers will not exclude liability (in particular, regarding physical injuries).
However, the use of disclaimers might be beneficial between parties to an agreement, as it is possible to modify contractual liability under Polish law (except for excluding liability for wrongful misconduct).