Paid training leave for a pharmacist – basic rules. What about unused leave?

Permission to operate a pharmaceutical wholesale store
Piotr Kłodziński|
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New authorization for a pharmacist-employee

With the entry into force of the Act of December 10, 2020 on the profession of pharmacist (i.e. Journal of Laws of 2022, item 1873) - hereinafter referred to as UZF, i.e. as of April 16, 2021, a new employment law for pharmacists practicing , the obligation of continuous professional development already imposed on him. This is about the right to paid training leave (Article 78(3) of the Personal Income Tax Act).

The introduction of previously unknown legal solutions is often associated with problems in practice. The wording of the provisions in which they are provided for is often questionable. Therefore, there is a need to interpret the new regulations. Until the jurisprudence of the competent authorities is formed - e.g. common courts (in the described case, labor courts), the Supreme Court and administrative authorities (in the described case, the National Labor Inspectorate) - it is not certain what interpretation they will adopt. The purpose of this entry is to present one of the possible, and in the authors' opinion, the most accurate, direction of interpretation of Art. 78 section 3 uzf

Pharmacist entitled to paid training leave

The provision on the pharmacist's right to paid training leave indirectly determines who exactly has the new competence. In this regard, it contains a reference to Art. 36 section 1 point 1 and 6 of the same Act. In view of the above, it should be stated that the described solution applies to employees within the meaning of the Labor Code (hereinafter referred to as the Labor Code) and persons in an employment relationship regulated in the Act of March 11, 2022 on the Defense of the Homeland (consolidated text: Journal of Laws, item 2305) and the Act of April 9, 2010 on the Prison Service (consolidated text: Journal of Laws of 2023, item 1683).

It is worth emphasizing that the same person may practice the profession of pharmacist simultaneously in many places and in more than one legal form. Of course, one must remember about the limitations of this freedom resulting from legal provisions, such as the prohibition to combine the function of a pharmacy manager with the position of a Responsible Person (manager of a pharmaceutical wholesaler), or the impossibility of being the manager of more than one pharmacy at the same time - Art. 88 section 1a-1b of the Act of September 6, 2001 - Pharmaceutical Law (consolidated text: Journal of Laws of 2022, item 2301). For example, however, a pharmacist may be employed in two pharmacies at the same time: in one - as an employee in connection with the conclusion of an employment contract, and in the other - on the basis of the so-called civil law contract. This second contract may have various titles: mandate contract, service provision contract, etc. (colloquially, not very correctly, it is also called "junk contract" or "garbage contract"). Then, the pharmacist is entitled to take paid training leave only as part of the employment relationship. It is worth noting, however, that by exercising freedom of contract, a pharmacist may agree with the other employer that he or she will have the right to paid training leave similar to that regulated in Art. 78 section 3 uzf

To determine the existence of a statutory right to paid training leave for a pharmacist, Art. 22 § 11 KP. This provision states that if employment takes place on terms typical of an employment relationship, it should be considered an employment relationship. In this context, it does not matter what the contract constituting the basis for cooperation was called differently by the parties (e.g. as a "mandate contract"). Therefore, a pharmacist formally working under a civil law contract may also take advantage of paid training leave, provided that his/her task is in fact to perform work of a specific type for and under the supervision of the employer, at a time and place designated by the employer, and the employer employs him/her for remuneration ( Article 22 § 1 of the Labor Code).

When considering the problem of the group of pharmacists entitled to take paid training leave, one more issue should be considered. The same pharmacist may be in more than one employment relationship at the same time - e.g. in two pharmacies, working half-time in each. The new provision of the Social Insurance Fund does not resolve this issue directly, but the most accurate statement seems to be that if a pharmacist is employed in parallel under two or more employment relationships, he or she is entitled to training leave under each of these relationships, regardless of other employment relationships.

Paid training leave for a pharmacist and paid training leave provided for in the provisions of the Labor Code

In art. 1031 KP states that improving professional qualifications involves acquiring or supplementing knowledge and skills by an employee. At first glance, it may seem that this regulation may apply to the continuing professional development of a pharmacist. However, the further part of the provision stipulates that the improvement of professional qualifications takes place either on the initiative of the employer or on the initiative of the employee - with the consent of the employer. Continuing professional development of a pharmacist, as already mentioned, is a legal obligation of a person who has the right to practice this profession. Therefore, it can be said that the mere improvement of qualifications by a pharmacist, referred to in Art. 78 of the UZF is carried out on the initiative of the legislator. The only thing left for a pharmacist to do is to choose the most convenient career development paths and plan them in the most beneficial way.

Another argument against simply qualifying the pharmacist's continuing professional development as improving professional qualifications provided for in the Labor Code is the fact that the pharmacist's legal obligation to continue training in the form chosen by him should be fulfilled even if the employer is against it. Analyzed article 78 section 3 of the Act requires only the date of the pharmacist's paid training leave to be agreed with the employer. In other words, the employer can only participate in determining the date of the pharmacist's absence from work while retaining the right to remuneration. The catalog of acceptable methods for improving professional qualifications by a pharmacist is specified by law. It results from the regulation of the Minister of Health of December 28, 2021 on educational points obtained as part of continuing professional development and the template of the pharmacist's professional development card (Journal of Laws, item 2494).

The above leads to the conclusion that paid training leave for a pharmacist, due to its close connection with the statutory obligation of continuous professional development, is not directly subject to the provisions of the Labor Code on training leave. The same applies to other issues related to training and similar activities undertaken by a pharmacist employed under an employment relationship. This does not mean, however, that - given the very modest content of Art. 78 section 3 UZF - you cannot look for similarities between the mentioned types of training leave and refer to them in the process of applying legal provisions. The legal literature even expressed the opinion that granting a pharmacist who was an employee the right to paid training leave resulted from the legislator's inspiration with the provisions of the Labor Code on "general" employee training leave.

The amount of paid training leave for a pharmacist

The described regulation specifies the amount of paid training leave for a pharmacist. It is up to 6 business days per year. In art. 78 section 3 of the Act does not specify how to calculate the amount of paid training leave for a pharmacist if he or she is employed part-time under a given employment relationship.

On the one hand, it might seem that Art. 154 § 2 of the Labor Code. The above-mentioned provision determines the amount of holiday leave for a part-time employee. If such reasoning were to be accepted, a pharmacist working other than "full-time" could count on as many days of paid training leave as would be proportional to his working time. For example, if the calculations were made in the above way, a pharmacist employed "part-time" would have the right to paid training leave of only 3 days per year.

On the other hand, the provisions of the Act regulating the profession of pharmacist refer to working days. This term does not appear in Art. 154 of the Labor Code or in other provisions of this Code that regulate holiday leave. These regulations only refer to "days" of leave. The expression "business day" - as in Art. 78 section 3 uzf – the legislator uses, among others, in art. 34 point 1 and art. 37 § 2 of the Labor Code. This difference seems to be important. A working day is a day on which an employee performs his or her job. If this reasoning is accepted, it does not matter how long the working time falls on a given calendar day to justify talking about a working day. It is worth adding here that paid training leave for a pharmacist is more similar in its function to paid leave from work duties for job search (regulated in Article 37 § 2 of the Labor Code) than to vacation leave. The former serves to ensure that the employee can continue his or her professional career uninterrupted after the termination of current employment. The second is to provide the employee with adequate rest and the opportunity to spend time in his private life.

The second interpretation seems more correct. In addition to the above-mentioned considerations, this position is supported by the fact that, in accordance with Art. 78 section 3 of the Act on paid training leave, the provisions of the Labor Code on holiday leave apply to paid training leave, but only as regards the calculation of the amount of remuneration due to the pharmacist.

The above conclusion is also worth supporting with an argument from the wording of Art. 1032 § 2 of the Labor Code. Pursuant to this provision, training leave is granted on days that are working days for the employee, in accordance with the employee's working time schedule. Of course, it must be remembered that the above-mentioned regulation undoubtedly applies to training leave granted in connection with an employee taking external examinations, the secondary school leaving examination, an examination confirming qualifications in a profession or a vocational examination, or with the preparation of a diploma thesis in the last year of studies and preparing for and taking the diploma examination. . However, as has already been emphasized, the common features of a pharmacist's paid training leave and an employee's "general" training leave justify the interpretation of Art. 78 section 3 of the Act in a way that takes into account this similarity.

It should also not be forgotten that the number of educational points required to complete the obligation of continuous professional development of a pharmacist, the length of the settlement period in this respect and the number of points obtained for participation in particular forms of continuous professional development do not depend on the working time in which the pharmacist is employed. (see the detailed regulation of the Minister of Health of December 28, 2021). The method of calculating the amount of paid training leave for a pharmacist should not make it difficult for him to fulfill his obligation to continue professional development.

Paid training leave in the amount described above is a pharmacist's right under Art. 78 section 3 uzf It does not have to be expressly provided for in the employment contract.

Unused paid training leave by a pharmacist

Taking training leave is a right, not an obligation, for a pharmacist. This right exists in the relationship with his employer. The legal provisions do not provide for the possibility of placing a pharmacist-employee on paid training leave without his consent, just as the Labor Code does not grant the employer the competence to order the employee to participate in specific forms of improving professional qualifications.

The requirement to agree with the employer on the date of granting paid training leave to a pharmacist may be understood as giving the employer some influence on when the pharmacist will be absent from work. Consequently, it seems that the employer may indicate to the employee the most convenient time in which he expects the pharmacist to perform his obligation of continuous professional development. It also seems permissible to object to the granting of paid training leave during a period when the presence of a given pharmacist at work is particularly necessary - e.g. in connection with the absence of other employees due to incapacity for work (sick leave, colloquially L4) or due to annual leave taken in accordance with with a vacation plan. However, the employer must not abuse this competence. Therefore, it should not delay the granting of paid training leave to a pharmacist employee to such an extent that it significantly impedes the implementation of the requirement for continuous professional development.

As can be seen from the above, it may happen that in a given year a pharmacist will not exercise the right to paid training leave. So, does the pharmacist's unused training leave roll over to the next year?

It seems that the above question can be answered affirmatively. As already emphasized above, a pharmacist's paid training leave is closely related to the obligation of continuing professional development. It is settled in five-year periods. Therefore, the pharmacist may unevenly distribute the fulfillment of his duties over time. This should be followed by the right to paid training leave referred to in Art. 78 section 3 uzf Otherwise, the entire art. 78 would be internally inconsistent.

The above-mentioned fact that the employer has influence on the date of exercising the described employee entitlement also supports the assumption that the pharmacist's unused training leave is transferred to the next year. The superior's needs in terms of work organization should not involve the risk of losing the right to paid training leave for the pharmacist. If this were the case, there could be situations in which the pharmacist would not fulfill the obligation of continuous professional development in the next four years due to the lack of an appropriate agreement with the employer. In the fifth year, he would have a lot of catching up to do. The "new" 6 days of paid training leave available to pharmacists for that year could prove to be insufficient. As a result, the pharmacist would have to either sacrifice his free time or give up part of his earnings in connection with being granted unpaid leave. In both cases, there would be an unacceptable burden on the pharmacist employee with the risk associated with running a business, which should be borne by the employer.

Against doubts about the transfer of paid training leave for pharmacists to the next year, the already noted fact that in Art. 78 section 3 of the Personal Insurance Act refers to the provisions of the Labor Code on annual leave only in terms of the rules for calculating the remuneration due to an employee - pharmacist. Therefore, you should not use, among others: art. 161, 163 and 168 of the Labor Code, which impose an obligation on the employer to grant the employee leave in the calendar year in which the employee became entitled to it (and exceptionally until the end of the third quarter of the following year), in accordance with the leave plan established unilaterally by the employer. As already noted, in Art. 78 section 3 of the Act clearly provides for a completely different solution - leaving both parties to the employment relationship the freedom to jointly choose the date of use of paid training leave by a pharmacist, not as part of a general leave plan, but in connection with the individual plan of a specific pharmacist regarding the fulfillment of the obligation of continuous professional development.

As indicated above, a pharmacist's right to paid training leave is an employee right. This means that despite the above, the described right becomes statute-barred after three years from the date on which the claim for this leave became due. So the problem remains to determine that day. It seems that the mere notification by an employee - pharmacist of the intention to take paid training leave is not sufficient in the above context, since an agreement must be reached with the employer regarding the deadline for justified absence from work. Therefore, one may be tempted to state that the limitation period for a claim for granting paid training leave to a pharmacist begins to run from the date on which the leave should begin, taking into account the need for it reported by the employee and the employer's reasonable organizational needs.

Do I need help from a lawyer?

The interpretative doubts presented in this entry related to the introduction of a new employee entitlement into Polish law may certainly give rise to legal disputes between pharmacists and their employers. Each of them has their own reasons and interests worth taking into account. A lawyer specializing in pharmaceutical law, but also taking into account labor law in his work, can help in many ways.

First of all, prevention is better than cure. Before a pharmacist decides to enter into an official dispute with his employer, it is a good idea to consult a lawyer. Such legal advice can help assess the actual legal situation, especially in terms of possible claims. This also applies to the employer. Thanks to the help of a lawyer, it will be easier for him to consider whether it is worth exposing himself to the costs resulting from the employee's claims in connection with proceedings different from the potential direction of interpretation of new legal provisions that the court may adopt in the event of an escalation of the dispute with the employee - pharmacist.

If a violation of employment law occurs, both the pharmacist and his employer may need the help of a lawyer to defend their interests. This is not only about support in the courtroom, but also about handling the case if an attempt is made to resolve the matter amicably - e.g., support in negotiations.

 

Top sources:

Gladoch M. Job contract. Amendment to the Labor Code. Templates of contracts and clauses. Comment, Warsaw 2024

Labor Code. Comment, ed. A. Sobczyk, Warsaw 2023

Labor Code. Comment, ed. K. Walczak, Warsaw 2023

Pharmaceutical law. Comment, ed. WL Olszewski, Warsaw 2016

Act on the profession of pharmacist. Comment, ed., E. Wasilewska, Warszawa 2021

Act on the profession of pharmacist. Comment, ed. S. Radowiscki, M. Wierzbowski, Warsaw 2023

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