DO 237-22 expounds on the definition of the relevant terms that are likewise defined under DO 202-19.
DO 237-22 provides a more specific definition of "alternative workplace" to encompass any location where work, through the use of telecommunication and/or computer technology, may be performed at a location away from the principal place of business of the employer. The alternative workplace may include the employee's residence, co-working spaces or other spaces that allow for mobile working. In comparison, "regular workplace" refers to the principal place of business or any branch office or physical premises established or provided by the employer where employees regularly report to or perform work.
Further, DO 237-22 defines "telecommunication" as the process of relaying and receiving voice, data, electronic messages, written or printed matter, fixed or moving pictures, words, music or visible or audible signals, or any control signals of any design or for any purpose by wire, radio or other electromagnetic, spectral, optical or technological means.
Finally, "telecommuting program" is defined under DO 237-22 as a set of voluntarily agreed-upon policies and guidelines, which allows an employee to work from an alternative workplace.
Application of labor standards
Similar to DO 202-19, DO 237-22 also requires that the terms and conditions of telecommuting not be less than the minimum labor standards. In addition, it provides that telecommuting shall not in any way diminish or impair the terms or conditions of employment contained in any applicable company policy or practice, individual contract, or collective bargaining agreement (CBA).
Accordingly, work performed in an alternative workplace shall be considered as work performed in the regular workplace of the employer. All time that an employee is required to be on duty, and all time that an employee is permitted or suffered to work in the alternative workplace shall be counted as hours worked.
Telecommuting employees are generally not considered as field personnel except when their actual hours of work cannot be determined with reasonable certainty.
An employer may offer its employees, on a voluntary basis, a telecommuting program upon such terms and conditions as they may mutually agree upon. Similarly, any employee or group of employees may also propose a telecommuting program to the employer.
Under DO 237-22, the telecommuting program may be in the form of a separate policy, or incorporated into existing policies or employment contracts, or in such other form as is convenient to the parties. In every case, there should be evidence that the employer and the employees voluntarily agreed to adopt the program.
At any rate, employers and employees may still agree on a hybrid arrangement where work can be performed in both the regular and alternative workplace, or other recognized forms of flexible work arrangement.
1. Contents of the telecommuting program
DO 237-22 provides an enumeration of and further discussion on the provisions required to be included in the telecommuting program, particularly as follows:
- Eligibility requirements;
- List of acceptable alternative workplaces;
- Minimum computer technology requirements for telecommuting;
- Implementation of occupational safety and health standards, as reasonably necessary, including the physical and mental well-being of employees
- Common performance standards for telecommuting employees and comparable employees at the employer's premises
- Code of conduct during virtual meetings, submission of accomplishment reports and measures to ensure compliance
- Data protection under the Data Privacy Act of 2012
- Emergency protocols for device breakdown, poor internet connection, power interruption, weather disturbances, and other related events and similar circumstances
- Date of effectivity and duration of the telecommuting program
- Grievance machinery to resolve all grievances arising from the implementation and enforcement of the telecommuting program, including an agreement for referral to voluntary arbitration
2. Fair treatment
DO 237-22 further mandates employers to ensure that telecommuting employees are given the same treatment as those comparable employees working at the employer's regular workplace. All telecommuting employees shall be covered by the same set of applicable rules or company policies, or by an existing CBA, if any.
In addition to the rights of telecommuting employees from prior issuances, the employer must give its telecommuting employees the opportunity to meet, physically or through telecommunication, with colleagues on a regular basis and, when practicable, allow access to the employer's premises and company information.
3. Implementation and administration of telecommuting
Under the regulations, facilities, equipment and supplies necessary to implement a telecommuting program and to enable the employee to perform their work in an alternative workplace are considered ordinary and necessary costs of the business of the employer.
4. Dispute resolution
In case of differences arising from the implementation or interpretation of the telecommuting program, the same shall first be referred to the grievance mechanism under the program itself, the company policy or the CBA. In the absence thereof, the parties shall endeavor to resolve the differences through dialogue and consultation. In case of unresolved grievances, the parties may request assistance from the regional or field office of the DOLE that has jurisdiction over the regular or the alternative workplace, for conciliation or mediation. Parties may also submit the unresolved grievance to voluntary arbitration.
5. Notice, monitoring and reporting
The implementation of a telecommuting arrangement should be reported by the employer to the DOLE through the Establishment Report System (reports.dole.gov.ph). The employer is further required to keep and maintain the documents proving that the parties voluntarily adopted the telecommuting arrangement for at least three years as part of their records.
In light of the technological advancements brought about by the recent pandemic, more establishments have become open to new and alternative avenues for employees to carry out their work, particularly telecommuting and other flexible work arrangements. Employers and employees are encouraged by the government to jointly adopt and implement telecommuting programs, taking into account the competencies, available technology and resources, the nature of the work, and other practical circumstances.
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