The keys to the new telework regulation agreed by the social agents
The keys to the new telework regulation agreed by the social agents
Spain Labor Alert
The social agents (Government, Trade Unions and Employers' Associations) have announced that they have reached an agreement on the regulation of labor relations exercised remotely on a regular basis, which content has been approved by the Council of Ministers on Tuesday 22nd September and published in a royal decree-law on Wednesday 23rd.
1. What does teleworking mean? Is it the same as working remotely?
This regulation defines remote work as the work organized or carried out at the employee’s home or at the place chosen by the employee, during the whole or part of the working day, on a regular basis.
On the other hand, telework is a type of remote work carried out through the exclusive or prevalent use of computer, telematics and telecommunication systems.
2. When is remote work considered to be regular for the purpose of applying this regulation?
Remote work shall be considered to be regular when a minimum of 30% of the working day, or the equivalent proportional percentage according to the duration of the contract, is rendered under this modality in a reference period of three months.
3. Is remote work voluntary or can it be mandatory?
It is voluntary for both the employee and the company, and will require the signing of a remote work agreement. It cannot be imposed by a substantial modification in working conditions. Nor may be cause for dismissal the refusal of the employee, or to exercise his right to reversibility to on-site work, or the difficulties for the proper development of the activity related exclusively to the change of the on-site to remote provision.
4. Can remote work be reversed or modified?
The decision to work remotely will be reversible for the company and the employee. The exercise of this right shall be regulated in collective agreement or, in default of it, trough the remote work agreement entered into by employee and the company.
The modification of the conditions, including the percentage of on-site work, requires the agreement of the employee and the company, in writing and in advance to its application.
5. Are there any cases that apply limits to remote working time?
In the case of employment contracts entered into with minors, and in the case of traineeships and training and apprenticeships, only an agreement guaranteeing a minimum of 50% of on-site work will be possible, regardless of the development of telematics theoretical training, where appropriate.
6. How should the remote working agreement be formalized?
This agreement must always be formalized in writing, incorporated into the initial employment contract or at a later stage, but in any case before the remote work begins.
7. What should be the content of the remote working agreement?
Despite what the collective agreements may stablish, the mandatory minimum content of the remote working agreement should cover the following matters:
- Inventory of media, equipment and tools for the development of the work, consumables and furniture elements, and the maximum period for their renewal.
- List of the costs the employee may incur as a result of the remote working, as well as a method of quantifying the compensation which must be paid, the moment and manner to be effected, which must correspond as provided in the collective agreement, if it exists.
- Working hours and availability rules.
- Distribution between remote work and on-site work.
- Workplace to which the employee is assigned.
- Place of work when working remotely chosen by the employee.
- Duration of notice periods for the exercise of reversibility situations, if any.
- Methods to control the activity.
- Procedure to be followed in the event of technical difficulties.
- Data protection and information security specifically applicable, involving the employee representatives.
- Duration of the agreement of remote work.
8. What rights should be guaranteed to remote employees?
Generally, remote workers shall have the same rights as if they were working at the workplace, so they may not suffer detriment in any of their working conditions, including pay, stability of employment, working time, training and career development, including rights related to personal and family life coordination.
9. Is the remote worker entitled to be reimbursed for the expenses?
The development of remote work must be compensated by the company and may not entail for the employee the assumption of expenses related to the equipment, tools and means linked to the development of his work activity.
Mechanisms for the determination and compensation of these expenses may be established by collective bargaining agreement or by collective covenant.
10. Does the recording working hours requirement still apply? And the right to digital disconnection?
Yes. The mandatory recording system shall faithfully reflect the length of time worked remotely, regardless the time flexibility, and shall include the beginning and end of the working day, according with what the collective agreements stablish.
Outside their working hours, the employees, particularly those working remotely, have right to digital disconnection. In addition, the company´s obligation to ensure disconnection entails a limitation of the use of technological means during rest periods, as well as respect the maximum duration of the working day, and any limits and precautions relating to the working day applicable legal or treaty provisions. The company, after hearing the legal representation of the employees, will draw up an internal policy in which the modalities of exercising the right to disconnection will be defined.
Collective bargaining agreements or collective covenants may provide appropriate means and measures to ensure the effective exercise of the right to disconnection from remote work and the appropriate organization of the working day compatible with the guarantee of resting time.
11. How should the occupational risk assessment obligations be fulfilled?
The risks of this type of work should be included in the occupation risk assessment and in the planning of preventive activities, with special attention to psychosocial, ergonomic and organizational factors. The risk assessment shall only cover the enabled area for the provision of services.
If to fulfil this obligation involves a visit to the place chosen to render the remote work, a written report shall be issued and shall require the worker’s permission. If it is not obtained, the undertaking’s preventive activity may be carried out on the basis of the identification of the risks arising from the information collected from the worker, in accordance with the instructions of the prevention service.
12. Can the employee be required to install software on his/her own devices?
The installation of software or applications on devices owned by the employee, or the use of such devices in remote work, shall not be required. Companies must establish the criteria for the use of digital devices, respecting the minimum privacy standards, as well as the terms under the employees may use, for personal reasons, the computer equipments provided by the company.
Collective bargaining agreements or collective covenants may specify the terms under the employees may make use, for personal reasons, of computer equipment provided by the company for working remotely, taking into account the social uses and particularities of remote work.
13. What faculties does the company have to verify the fulfilment of the employee’s obligations?
The company may take the measures considered appropriate for surveillance and control, including the use of telematics means, always taking due account of the dignity of the worker.
14. What about the remote working arrangements already in force?
The regulation shall apply to employment relations in force ruled prior to their publication by collective bargaining agreements and collective covenants, as soon as they cease to be in force.
If they do not provide a duration, the regulation shall apply within one year of its publication in the BOE unless the parties expressly agree a longer period, which may not exceed three years.
As soon as the regulation becomes applicable, the parties must formalize the remote working agreement within 3 months, as well as any adjustments or amendments to existing individual remote working agreements, not derived from collective bargaining agreements or collective covenants.
15. Does the regulation have any specialty in relation to remote work as provided for in regulations COVID-19?
Remote work implemented exceptionally in application of Article 5 of the Royal Decree-law 8/2020, of 17 March, or as a consequence of the sanitary containment measures derived from the COVID-19, and as long as these are maintained, the ordinary labor regulations will continue to be applied. In any case, the company shall provide the means, equipment, tools, consumables and maintenance required by remote work. Where applicable, collective bargaining shall establish the form of compensation for the costs incurred by the worker in this form of remote work, if they exist and have not already been compensated.