After months of negotiations, yesterday the Ministry of Labor and Social Economy managed to approve the new Royal Decree Law 28/2020 of September 22nd on teleworking after reaching an agreement with employers and unions, as explained by the Minister of Labor Yolanda Díaz in a press conference. “It has been the most difficult and complex negotiation. It will change the modus operandi of the development of our work and puts us at the forefront of European legislation,” explained the minister.
The current Article 13 of the Workers’ Statute was obsolete and did not cover telecommuting, which was on the rise due to Covid-19 with more than 3 million teleworkers. The new Royal Decree-Law puts an end to this irregularity and covers many aspects, from the limits of distance working, to the flexibility of schedules, who must bear the costs and which workers will be able to benefit from distance working.
The text, which is the result of a Social Dialogue agreement, guarantees the same rights for people working remotely as those who work on company premises.
The DR is based on the voluntary nature of this model of labor organization, placing Spain at the forefront of the European framework in the regulation of distance work.
The articles contemplate that the working person will not assume any expense related to equipment, tools, means and consumables, linked to the development of their activity.
The role of collective bargaining is reinforced, through agreements and conventions that will determine conditions and relevant aspects such as the right to disconnect, flexible hours and the reversibility of teleworking.
One of the key points of the new law is the very definition of telework. That is, what work situations will be considered telework and therefore defined under this law. Those workers who sporadically work from home will not be subject to these rules.
Telework will be that which is provided for “a minimum of 30% of the workday, in a reference period of 3 months”. In other words, in a basic contract of 40 hours and 5 days a week, it will be considered teleworking when it is performed for at least one and a half days a week. The law also provides that there will be a “proportional percentage equivalent to the duration of the employment contract.
Teleworking will be voluntary and a written agreement must be formalized between the company and the worker to reflect this. Equally, it will also be possible for each party to terminate the telework and return to the previous situation. As a consequence, the worker cannot be forced to telework but cannot claim to do so either.
As a result of this agreement, the refusal to work remotely will not be “justifiable causes” of dismissal or change in conditions. The Law establishes that all persons who work remotely will have “the same rights as if they were in the workplace and may not suffer any prejudice, including wage compensation, stability, schedules, promotion or professional training”.
“Companies must avoid any discrimination based on gender: guarantee conciliation, co-responsibility, measures against harassment and protection for victims of gender violence,” explained the Minister of Labor.
AGREEMENT IN WRITING
All the details of the telework must be reflected in writing. Specifically, the Law establishes a minimum number of points that must appear, which can be extended according to the collective agreement.
These are the points that the company must agree with the worker:
- Inventory of the means, equipment and tools required for the concerted remote work, including consumables and movable elements, as well as the useful life or maximum period to renew them.
- Expenses that the remote worker may have and the modality (form and moment) to compensate them on behalf of the company.
- Working hours and availability rules.
- The percentage and distribution between on-site and remote work.
- The place chosen by the employee to telework.
- The means of business control of the activity.
- The duration of the agreement and the notice periods to return to the situation of presentiality.
- Instructions on data protection and information security.
EXPENSES DERIVED FROM TELEWORKING
The company will be responsible for the provision and maintenance of “all means, equipment and tools” needed by the worker to carry out his activity at a distance, as defined in the agreement signed.
The Law establishes that the company must pay or compensate for the development of distance work and “may not involve the assumption by the worker of expenses related to equipment, tools and means linked to the development of his work activity, as set out in the inventory of the written agreement”. It will be in the collective agreement where the mechanisms to determine, assume and compensate these expenses are fixed.
ENTRY INTO FORCE
The new Telework Law will come into force 20 days after its publication in the BOE. The Council of Ministers has approved these measures by decree law and today, September 23, 2020, has been published in the official gazette.
Its application in practice will not be so soon. The law also establishes different deadlines for companies to reach collective agreements and define the various parameters. A maximum period of 3 months is established to formalize the telework agreement between company and teleworker. However, companies that already had an agreement on teleworking will have more time.
CASES IN WHICH TELEWORKING WAS ALREADY PERFORMED
If the company and workers had a collective agreement, the deadlines are longer. If this agreement had an expiration date, it will be in effect until it ends. If there is no end date, companies will have a maximum of one year to adapt to the law or up to 3 years if there is an agreement with the workers.
In many cases there will be a prior collective agreement, but it may not include all the details required by law, such as cost sharing. In this case, it will be necessary to agree.
The law provides an exception for teleworking resulting from the pandemic. “In application of Article 5 of Royal Decree Law 8/2020, of March 17, or as a result of the health containment measures derived from COVID-19, and while these are maintained, the ordinary labor regulations will continue to apply”. Companies in this provisional situation will have to provide the means, equipment and tools, although they will not have to compensate for the costs. “What we have experienced in this pandemic is not teleworking,” warns the minister.
In contracts for work with minors, for internships or for training and apprenticeships, work can only be done if 50% of the working hours are guaranteed to be in person. In other words, teleworking will be limited to training jobs.
The new Law establishes that the person who performs distance work may “make the established service hours more flexible, respecting the times of obligatory availability and the regulations on working and rest time”.
In other words, the teleworker’s schedule will be agreed by agreement and the current limitations on working and rest time must be respected. In other words, the meal breaks or distance between one day and the next. In the agreement it will be possible to agree when the employee has to guarantee availability.
For teleworking, a time record must be kept, which must include the start and end time of the working day and the periods of activity.
CONTROL OF THE WORK
The text explains that the company may “adopt the measures it deems most appropriate for monitoring and control to verify compliance by the worker with his obligations and duties at work, including the use of telematic means.
On the other hand, these telematic means must guarantee the right to privacy and data protection. The company may not demand the installation of programs or applications on devices owned by the worker.
OCCUPATIONAL RISK PREVENTION AND RIGHT TO DISCONNECT
The company must take into account the occupational risks involved in teleworking, such as “psychosocial, ergonomic and organisational” risks. To this end, the various breaks throughout the day must be guaranteed, the distribution must be taken into account and protective measures must be put in place.
If an inspection is required to analyse the risks at work, a written report must be provided to justify this, which must be accepted by the worker. The evaluation will only be carried out in the area where the work is done remotely, which does not have to be the whole of the home.
People who work remotely will have the right to a so-called ‘digital switch-off’. The companies must guarantee the limitation in the use of technological means during the rest periods, as well as the respect to the maximum duration of the day. This is a right previously contemplated in the regulations and where it is urged to develop an internal policy that defines “the modalities of exercising the right to disconnect and training and awareness of staff on a reasonable use of technological tools to avoid the risk of computer fatigue.