Apply teleworking in your company without incurring in illegalities

Royal Decree-Law 28/2020, of September 22, which came into force on 10-13-2020, establishes the new regulation of remote work

Following the health crisis, as a consequence of the pandemic caused by the impact of the coronavirus and the increase in the provision of remote services that it entailed, the need to regulate this type of service provision became evident.

He Royal Decree-Law 28/2020, of September 22, establishes the new regulation of remote work, which came into force on 10-13-2020, but will not apply to companies that have implemented teleworking as a health containment measure derived from COVID-19.

However, companies are obliged to provide their employees with the necessary means to carry out remote work, and to compensate existing expenses in the manner established through collective bargaining, that is, as established by the collective agreement applicable in the company. The written agreement for remote work must be formalized within three months from the application of RDL 28/2020 (that is, until 23-12-2020).

The same term will apply to distance agreements that are still in force before this regulation, which will require adaptations or modifications.

The regulation focuses on the following rights:

• Those related to professional career.
• Economic content rights.
• Rights with an impact on working time.
• Those related to the prevention of occupational risks.
• Rights related to the use of digital media.
• Collective rights.

For all of them, aspects of interest are established regarding work and rest times, control of work activity, the right to privacy, remuneration and financial compensation, as well as preventive obligations.

The most important points about the Teleworking Law

Unless there are any last-minute changes, some of the key points of this Law that you should keep in mind are:

1. The regulation clarifies that remote work is understood to be work that is carried out regularly at the worker's home or at the place chosen by him or her. It is specified that regular work is understood to be work carried out when, in a reference period of 3 months, a minimum of 30% of the working day (or equivalent proportional percentage based on the duration of the contract) is carried out under this modality. That is, remote work of more than one and a half days a week. On the other hand, teleworking is understood to be work carried out remotely through the exclusive or predominant use of computer means and systems.
2. Remote work will be voluntary for the employee and the company. It is also taken into account that the employee and the company may revert the remote work situation to face-to-face work, in accordance with the conditions agreed or established in collective bargaining. The employee's refusal to work in this way or the exercise of the reversibility to face-to-face work may not be a justified cause for the termination of the employment relationship.
3. In contracts with minors, internship contracts, as well as contracts for training and apprenticeship, remote work may only be established when it is guaranteed that at least 50% of the provision of services is carried out in person.
4. The remote work agreement must be made in writing and prior to its performance, with a copy being provided to the legal representative of the workers within ten days of its formalization and, subsequently, also to the employment office. The agreement must be formalized within a maximum period of three months from the date Royal Decree-Law 28/2020 becomes applicable. The minimum content of the agreement must include, among other points, the inventory of means and equipment for the development of remote work, including useful life and renewal period; expenses that the worker may have and that must be borne by the company; schedule and availability rules; percentage and distribution of remote and in-person work, assigned work center, and remote work location, etc.
5. Workers who provide services remotely will have the same rights as if they were providing services in person, including flexible working hours and recording of their working hours.
6. Among other rights, people who provide remote work services, particularly teleworking, have the right to digital disconnection, and the right to the provision and maintenance by the company of all the means and equipment necessary for the development of the activity, as well as the necessary attention in the event of a technical incident.
7. The worker will not have to bear any expenses related to the development of his/her work activity while working remotely.
8. In addition, the company must carry out a risk assessment and planning of preventive activities for remote work.
9. The law includes a judicial procedure to process claims regarding access, reversal and modification of remote work. The worker will initiate it within 20 days of the company's refusal or disagreement with his/her proposal.
10. Teleworkers have the right, among others, to digital disconnection.

Remote work came into effect 20 days after 23-09-2020 (i.e., 13 October 2020), although it can be formalised in writing within three months (until 23-12-2020).

The regulation will be applicable to existing employment relationships that were regulated prior to its publication by collective agreements and conventions, from the moment in which these lose their validity.

In the event that these agreements do not provide for a term of duration, this rule will be applicable within one year from its publication in the BOE (September 23, 2020), unless the signatory parties expressly agree to a longer term, which may be a maximum of three years.

Once this regulation is applied, the parties must formalize the remote work agreement within a period of three months, as well as any adaptations or modifications to the current individual remote work agreements, not derived from collective agreements or conventions.