From May 16, 2021, the provisions introducing the obligation of employers (and other companies contracting the Individuals under e.g. contract of mandate) to indicate the profession performed by an employee when reporting it to the Social Insurance Institution (ZUS) enter into force. The new regulations, although they apply to all employees subject to compulsory insurance, may be of particular importance in the context of employing foreign nationals in Poland.
The new provisions were set out in the Act of May 14, 2020 amending certain acts in the field of protective measures in connection with the spread of SARS-CoV-2 virus, i.e. Anti-crisis Shield 3.0. The period of entry into force of these regulations is set at 12 months from the date of promulgation of the Act.
According to the justification, the information on the occupation is to serve statistical purposes, including, above all, effective monitoring of surplus and shortage occupations or the creation of forecasts relating to the situation on the labor market in Poland.
The Social Insurance Institution has already specified that from May 16, 2021, information about the occupation is to be reported by providing information about the occupation code, in accordance with the classification of occupations specified by the Regulation of the Minister of Labor and Social Policy of August 7, 2014 on the classification of occupations and specialties for the needs of the labor market and the scope of its application.
The Act does not require updating data on occupational codes in relation to employees reported to the Social Insurance Institution before May 16 this year.
How will this change affect companies employing foreign nationals in Poland?
Currently, the obligations of companies who employ foreign nationals in Poland include, inter alia, indicating the code of the profession when obtaining documents legalizing employment. These data must be included in the application for issuing such documents as the Starost’s information, work permit or a declaration on entrusting work to a foreign national.
Moreover, based on the classification of professions, the minister responsible for labor publishes a list of specialties for which there is an easier and faster way to obtain documents legalizing employment, for example without the need to obtain information from the Starost (i.e. the so-called "labor market test").
Until now, the code of occupation declared by the employer during the process of employing a foreigner had been primarily important in the context of a faster path to obtain documents enabling legal employment of a foreign national. However, the introduced changes make it possible to make appropriate comparisons in terms of the profession declared in the process of obtaining documentation to that which will ultimately be included in the notification documents to ZUS.
Consequences of incoherence - illegal employment?
Maintaining consistency in the documents submitted to ZUS and in the immigration procedures by the employer may affect the assessment of the authorities whether the work entrusted to the foreign national takes place under the conditions specified in the relevant permit. Otherwise, the foreign national may be entrusted with illegal work.
In the procedures for legalizing the stay and work of foreign nationals in Poland, the offices verify, inter alia, the purpose and basis of stay, as well as having financial resources or the possibility of covering the costs of medical treatment in Poland.
During residence permit procedures, Voivodeship offices call on foreigners to present documents confirming, inter alia, possessing health insurance, e.g. reporting declarations to the Social Insurance Institution. Thus, the authorities will have at their disposal additional material to conduct the relevant analyzes.
In light of the above, it seems particularly important to carefully analyze the classification of professions and select a code that reflects the work performed by employed foreigners.
Not only foreign nationals will be covered by the new requirement
Although the topic is particularly important for foreign nationals, it is worth remembering that the obligation to provide the profession code will apply to all employees or contractors of Polish and foreign companies who are subject to compulsory social and health insurance in Poland, regardless of their nationality. In the case of performing work under a foreign contract, such an obligation may arise, for instance, when a given person is posted to work in Poland, but for various reasons will not be covered by the obligatory social security system in the country of the employer's seat, and thus will not obtain an A1 certificate of coverage. As a result, during his or her employment in Poland, social security contributions will need to be paid to the Polish system. When registering such a person as an insured individual with ZUS after May 16, 2021, the appropriate profession code will have to be indicated.
How can we help?
- By reviewing the cases and assessing the risk of questioning the legality of foreigners' work in the company.
- Supporting the procedures of legalization of stay and work and thorough analysis of the submitted documentation.
- By determining when a person working in Poland under a foreign contract will be subject to obligatory social security in Poland and supporting the fulfillment of the obligations of the contribution payer towards ZUS.
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