- Minimum content: The teleworking contract or agreement must include the following minimum content:
- The obligations of the employer.
- The rights and obligations of the teleworker.
- Measures of protection against sexual harassment while teleworking.
- Health and safety measures while teleworking.
- Information security measures.
- In the case of provision of technological equipment, details regarding safety measures and the periodicity of maintenance.
- Reasonable adjustments implemented in the case of workers with disabilities.
- Distribution of the day: In the case of partial teleworking, the distribution of the working day must be specified in the employment contract or teleworking agreement.
- Term: If the parties do not agree on a term for teleworking, it is understood that it is permanent.
- Foreign Nationals: The application of teleworking does not exempt foreign nationals from compliance with the corresponding migration and labor regulations.
- Right to privacy and inviolability of communications: The obligation to respect the right to privacy and the inviolability of teleworkers' communications is required. An employer will not be able to access the documents and communications of a teleworker without giving prior notice. In addition, the prior and express consent of the teleworker is required to record their image or voice unless this is required by the nature of their function. It is also not possible to make visits to the teleworking place without prior authorization from the teleworker.
- Equipment: Equipment provided by the employer may only be used for work purposes. Technical or connectivity failures that impair the provision of services will not be considered attributable to the teleworker and cannot be deemed a disciplinary infraction or detrimental to productivity, or affect remuneration, as long as the teleworker reports the inconveniences arising in a timely manner under the criterion of reasonableness.
- Reversibility: The worker can request the change of their work mode to telework or back to face-to-face work before the agreed deadline expires. The employer must respond within 10 working days. In addition, the application must be evaluated objectively based on family responsibilities, job functions, the worker's ability to travel, a change of workplace location and disability status, among other criteria.
- Training: At the beginning of the employment relationship, when changing the work mode, or when substantial modifications are introduced, the employer must provide training on the following:
- Health and safety while teleworking
- Prevention of sexual harassment while teleworking
- The use of computers and/or digital media
- Protection of personal data
- Information security
- Compensation: The provision of equipment and internet/electricity service by the worker would not imply, under any circumstances, that the teleworker assumes all the expenses related to the equipment, tools and costs linked to the development of their work activity. Parameters for calculating the minimum value of the internet and electricity service are set out in Annexes 1 and 2.
- Health and safety at work: Accidents that occur while teleworking qualify as work accidents when the teleworker can prove that the injury or damage to health occurred at the workplace, during working hours and with the work tools used for the job. The teleworking space must be the subject of a risk assessment either directly by the employer or through a self-assessment form, the correct use of which is the subject of training by the employer.
- Violations: The exceptional circumstances in which the employer may unilaterally change the work mode is not specified. Despite this, unilateral amendment is deemed a serious violation of the Regulations of the General Labor Inspection Law. In addition, not complying with the minimum content of the teleworking contract/agreement is considered a minor violation. The following serious or very serious violations will be introduced:
- Failing to comply with the regulations on the provision and maintenance of equipment and internet/electricity service.
- Not granting the same rights and benefits to teleworkers.
- Affecting the category, remuneration and other benefits of the worker.
- Preventing the free choice of teleworking, unless the requested place of teleworking does not have the necessary digital and communication facilities, or represents a risk to safety and health.
- Failing to support the reasons justifying the denial of the worker's request for a change of work mode.
- Failing to respect the rights of privacy and inviolability of communications.
- Not respecting the right to digital disconnection.
We remind you that this publication refers to the Draft Regulation. We will have to wait for the approval and publication of the standard by the labor authority to know what the final design of the regulation on teleworking will be.
We trust that this information will be useful to you. If you require legal advice on this issue for your company, do not hesitate to contact us.
* * * * *
Estudio Echecopar is a member firm of Baker & McKenzie International, a Swiss Verein with member law firms around the world. In accordance with the common terminology used in professional service organizations, reference to a "partner" means a person who is a partner or equivalent in such a law firm. Similarly, reference to an "office", means an office of any such law firm.
Before you send e-mail to Estudio Echecopar, please be aware that your communications with us through this message will not create a lawyer-client relationship with us. Do not send us any information that you or anyone else considers to be confidential or secret unless we have first agreed to be your lawyer in the matter. Any information you send us before we agree to be your lawyers cannot be protected from disclosure.
@2022 Estudio Echecopar
All rights reserved.
No part of this publication may be reproduced in any form or by any means without the written permission of Estudio Echecopar.
