Commentaries / 20-01-2021

Remote work: COVID-19 prompts new legislation in Latin America

Latam Commentary

Teleworking, working from home or remote working gained particular importance in 2020 due the various measures adopted by governments and employers to curb COVID-19 infections. So an understanding is needed of the new rules and situation of the legislation on this subject in the various jurisdictions. We examine below the current situation in a few Latin American countries such as Chile, Colombia or Peru.

CHILE

In Chile there was no organic legislation that duly regulated teleworking services before the arrival of COVID-19. The pandemic compelled the Chilean authorities to adopt measures in this area, resulting in the approval of Distance Working and Teleworking Law No 21,220, which came into force on April 1, 2020.

The key elements of the Distance Working and Teleworking Law are described below:

A distinction is made between “teleworking” and “distance working”:

Distance working: is where an employee provides their services all or part of the time from home or from another place or places outside the company’s establishments, facilities or worksites.
Teleworking: is where an employee provides their services using technology, and computer or telecommunications equipment or if those services must be performed using these tools.

Both teleworking and distance working require a written agreement with the employee. This agreement can never introduce lower pay for the employee, or curtail any individual or collective right which is compatible with the rules provided on distance working and teleworking.
Within 15 days after an agreement of this type has been signed, it must be registered with the Department for Work.
The parties must agree on where the employee will provide their services, either at the employee’s private home or at another specified place. If the services may be provided in more than one place because of the type of job involved, it may be agreed that the place may be chosen by the employee.
The agreement may be signed at the beginning of the employment relationship or during its term. In the second case, a unilateral condition is specified that either party (employee or employer) may withdraw to return to a working arrangement at the workplace, on giving at least 30 days’ notice to the other party.
With respect to working hours, teleworking or distance working agreements may be for all or part of the employee’s stipulated working hours, and they may combine work at the workplace with time worked outside the employer’s premises:

Under distance working arrangements, employees are subject to working hour restrictions. The employer must put in place and cover the cost of an attendance record. It is allowed to work overtime under distance working arrangements. If the type of work so permits, it may be agreed for the distance employee to distribute their hours in the way that best suits their needs, as long as they observe the maximum daily and weekly working hours.
Where there is a teleworking arrangement, the teleworker is also subject to working hour restrictions, unless the parties agree that the employee is exempt from the working hour limit, under article 22.4 of the Work Code. In that case, they cannot generate overtime hours. However, it is presumed that teleworkers are subject to working hour restrictions if the employer exerts functional control over the way in which their work is performed and its timing; in which case they are entitled to overtime.

The law acknowledges a right to disconnect for at least 12 hours uninterruptedly in any 24 hour period for distance employees who are free to choose how to distribute their working hours, and for teleworkers not subject to working hour restrictions; in that period, the employer is not allowed to expect the employee to respond to communications, orders or other requests. In addition, employers are not allowed to communicate or make orders or other requests on days falling within these employees’ rest, leave or annual vacation periods.
Employers are required to provide the necessary tools, equipment and supplies to provide the services under distance or teleworking arrangements, and cannot make employees use their own property. Moreover, employers must pay the operating, running, maintenance and repair costs of that equipment which are needed for correct performance of the work.
Employers also have a duty to inform employees of the health and safety requirements that must be fulfill in the place where they work, any potential occupational risks to which they might be exposed, along with preventive and safe working practices, and to make sure that those health and safety requirements are observed. Moreover, employees must be trained in these matters, either directly or with the assistance of the overseeing agency for Law No 16,744 on insurance for occupational accidents and occupational disease.
In every case, employers must inform of the existence or otherwise of labor unions, and ensure that the employees are able to take part in any collective activities that take place at the employer’s premises. There cannot be restricted entry to the employer’s premises for the employee.

Moreover in matter of distance working and teleworking agreements during August of 2020, Law No 21,260 was approved, imposing the obligation over employers to give pregnant employees the option to distance work or telework, without lowering their pay, if during their pregnancy a constitutional state of exception for a catastrophe due to a public disaster is declared, by reason of an epidemic or pandemic caused by an infectious disease.

COLOMBIA

Two types of distance working arrangements exist in Colombia: teleworking and remote working.

Teleworking, as defined in Law 1221 of 2008, allows workers to work from home after meeting certain requirements. Under the teleworking requirements, employers must:

i) Amend the internal work regulations;

ii) Report to the occupational risk authority (ARL) the activities that the teleworker will perform and the place where they will be carried out;

iii) Report to the Ministry of Employment, and

iv) Amend the employment contract and execute an additional clause.

In teleworking arrangements, employers have to cover the maintenance of equipment, connections, programs, energy costs, and orderly travel arrangements that workers need to perform their work. Employers have a duty to provide the technology tools that workers need to perform their work; as an exception, however, the parties may agree for computer equipment to be supplied by the employee.

Working from home was provided for, in principle, as a temporary and transitional arrangement allowing people to work from home without all the legal requirements associated with teleworking.

Working from home was created by the Ministry of Employment in Circular 21 of 2020, and is set to be in force permanently and until the end of the health emergency, which for the time being has been extended until February 28, 2021 in Decision No 2230 in 2020.

For working from home arrangements, employers must agree to, and pay workers on a wage at or below two minimum wages (USD 550 approximately), a benefit, known as a connection allowance, which is a set sum equal to approximately USD 30, if the workers are not receiving the transport allowance benefit.

PERU

In view of the National State of Emergency, enforced until March 7, 2021, and the State of Health Emergency, enforced until January 31, 2021, under Urgent Decree No 026-2020, employers were allowed to implement remote work, meaning “a subordinate working scheme by which the worker is physically outside the work place – not necessarily at home – but using equipment’s and employer’s tools to work outside the workplace” (article 16 of Urgent Decree No 026-2020).

It is important to mention that remote work raises a vast of issues and challenges for employees and employers. For such purposes, Peruvian legal frame provides two alternatives: remote work and teleworking (home office).

Supreme Decree No 010-2020-TR sets out the most important elements of remote work, including the following issues:

Unilateral decision: remote work may be established by the employer unilaterally.
Working conditions: working conditions remain unchanged, meaning pay and other conditions stay the same with the exception of having to be present at the workplace.
Work tools and equipment: the employer must provide work tools and equipment in order to allow the employee to execute services properly.
Occupational health and safety: employers must share with the employee’s guidelines including health and safety recommendations and requirements to avoid risks at home office and achieve best home-work balance.
Working hours and home-work balance: maximum hourly limitations applicable: employees should not exceed from 8 hours per day or 48 hours per week. By Urgent Decree No. 127-2020, the government sets the right to be disconnected from remote work after accomplished the maximum working hours.

Remote working, unlike teleworking or home office, does not require prior consent from employees and thus it has provided evidence to prove that is a feasible working scheme.

On the other hand, formal teleworking or home office scheme is not currently used by employers as it requires prior consent from employee and there are legal loopholes such as occupational health and safety and labor inspection matters. The lack of flexibility on the “teleworking” implementation procedure affected its implementation among employers.

Teleworking scheme may be executed according to the following alternatives: (i) employee works 100% through home office scheme, or (ii) employee works through a mix scheme in person and remotely. Teleworking must be formally agreed by parties in writing. Additional teleworking terms and conditions are as follows:

Tools and equipment: the employer is required to provide or assume their costs. Where the employee provides their own equipment or work tools, the employer has an obligation to compensate all the costs incurred.
Writing form: a written agreement with the worker is required to determine terms and conditions. Minimum information must be included in the agreement: (i) the media tools needed for performance of the work; (ii) measures related to the safety and secure of information; (iii) work hours assigned to the worker; and (iv) the supervision or reporting mechanism implemented to facilitate the control and supervision of their tasks.
Teleworking terms and conditions: employers must determine teleworking period, renewal conditions and alternatives to return to in-person scheme.
Occupational health and safety rules: employers must provide the information related to the measures, conditions and recommendations related to occupational health and safety rules. (Law No 29783 and Supreme Decree No 005-2012-TR).

As mentioned before, the existence of formal requirements and the lack of flexibility on the use of teleworking – as well as the existence of a remote work decision that can be implemented by the employer – has limited the use of teleworking agreements.

Home office working– remote work or teleworking – are here to stay. Employers have found serious challenges during pandemic as some tasks and responsibilities can not be done remotely. On the other hand, employees are struggling to achieve an equal balance between personal life and home office by demanding reasonable working conditions and pushing for a mandatory digital curfew.

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