Labor rights while teleworking: 7 fundamental keys

Teleworking is an increasingly used work regime. Although its peak was due to sanitary reasons during the Covid-19 pandemic, the truth is that it has some advantages for companies, reducing structural costs and facilitating the relocation of assets.

The way of providing services has attracted the attention of legislators. Currently, there are already specific rules, as well as judicial pronouncements, which both the company and the employee should have knowledge.

How is teleworking regulated?

Teleworking, like any other labor system, is mainly regulated by the Workers’ Statute, individual contracts, collective negotiations and, as the case may be, sectorial legislation.

Nevertheless, the RD 28/2020, on telecommuting, was recently approved, which introduces major modifications. The most important ones are:

• Voluntary nature of the telecommuting regime.
• The need to sign a telecommuting agreement with a minimum content determined by law and collective negotiations.
• Protection of the workers before the refusal or impossibility of teleworking.
• Compensation of the expenses derived from this labor system.
• Recognition of the right to digital disconnection and labor risk prevention

Can I choose to work remotely for work-life balance reasons?

Yes, Article 34.8 of the Workers’ Statute allows for the request of adjustments to the length and distribution of the working day, including the possibility of requesting the provision of services remotely. Thus, the activity of workers is made more flexible, facilitating the work-life balance.

Such adjustments must be reasonable and proportionated; otherwise, the company may refuse them. In case of conflict, the matter can be settled in court. Furthermore, the worker will maintain the right to return to their previous working day or previous regime once the period adopted has ended or in the event of a change in circumstances.

Note that if the company fails to comply with its duty to negotiate, it could be fined (see the Sentence of February 5, 2021 of the Superior Court of Galicia).

When is it considered that I am working remotely?

For RD 28/2020 to be applicable, at least 30% of the working day must be worked remotely during a reference period of three months.

What new rights and duties does this regime entail?

The scheme of rights and duties of this type of work is identical to that of the in-person model. However, given the particularities of this way of working, special attention should be paid to aspects such as:

• Union participation and collective negotiations.
• Protection against occupational risks.
• Digital disconnection.
• Workday registration.

How is the right to digital disconnection in teleworking enforced?

The company must have disconnection protocols, under the terms established in the LOPDGDD. Its purpose is to establish limits to the use of technological means of business communication, guaranteeing the right to rest.

Collective negotiations are essential in the elaboration of these protocols, paying special attention to the labor relations of people using technological tools to provide their services.

How do you keep track of the workday?

The workday registration must accurately reflect the time the worker has dedicated to their work activity. This does not prevent flexible working hours, but it does mean greater control over the start and end times of the working day.

If I have an accident while teleworking, ¿is it considered an occupational accident?

Article 156 LGSS determines that Occupational Accidents are those suffered on or because of the work done as an employee. In addition, it determines that injuries sustained during the time and in the place of work are presumed to be accidents at work. Such presumption is iuris tantum. In other words, it admits proof to the contrary.

Therefore, unless there is enough evidence to the contrary, the accident suffered while teleworking will be considered as an occupational accident. Recently the High Court of Justice of the Basque Country (Judgment nº. 1075/2020) analyzed a case of this type, arguing that the existence of antecedents (such as smoking, obesity or stable angina in this case a cardiac accident) is not enough to destroy the presumption of work-relatedness.

Ultimately, the telework regime introduces some particularities in labor relations. However, even being subtle, respecting these differences are key to comply with the Law, ensure respect for the workers’ rights and maintain the legal certainty of the company.

Therefore, in case of doubt, the most advisable thing to do is to consult specialized lawyers in Labor or Corporate Law. In law firms like ours, we keep ourselves updated with the latest developments in the sector, guaranteeing the security of our clients and watching over their interests.

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