The new telework law considers telecommuting or teleworking when at least 30% of the working day must be carried out in this way, within the reference period of 3 months or the equivalent percentage, depending on the duration of the contract.
Teleworking must always be voluntary for both the company and the employee, and cannot be forced to change to this modality, even if one of the parties wishes to do so.
Law 10/2021, the law regulating telework and remote work, applies to workers in the General Regime.
After the end of the COVID-19 emergency situation whereby many companies had to start teleworking, some of them have continued teleworking..
When is teleworking considered to be teleworking?
The new law on teleworking considers teleworking or telecommuting when at least 30% of the working day must be carried out in this way, within the reference period of 3 months or the equivalent percentage, depending on the duration of the contract.
Definition of the concept of teleworking and remote working
A distinction is made between what is telecommuting and teleworking with respect to occasional, face-to-face telecommuting for the purposes of applying the rule:
– Telecommuting shall be work performed at the worker’s home or chosen place during his working day or part of it, on a regular basis.
– Teleworking shall be carried out using computer or telematic systems.
Mandatory written agreement for teleworking
Teleworking must always be voluntary for both the company and the employee, and cannot be forced to change to this modality, even if one of the parties wishes to do so.
Once an understanding has been reached between both parties to telework, it is essential that there is a prior agreement signed by both parties and it must be formalized in writing.
This agreement, which must be in writing, will be set out in the initial contract or in a subsequent document (Annex), before telecommuting begins.
It should reflect changes in the conditions of remote working, following agreement between the employer and the employee.
Remote workers shall have the same rights, working conditions, remuneration, promotion, work-life balance, as the staff who come to the workplace, except if they are inherent to the face-to-face activity.
The company shall pay the costs of teleworking.
– Teleworkers are entitled to be provided with the means to work remotely, as well as assistance in the event of technical difficulties.
– The employer shall bear or compensate the costs of teleworking.
– Working remotely may not imply that the worker assumes the costs for the tools he/she will need for the work activity.
– Collective agreements may establish mechanisms to compensate for these costs.
– Workers who were already teleworking before the regulation will also be covered, but this will not imply any compensation, absorption or disappearance of rights or more beneficial conditions that they were enjoying.
Mandatory minimum content of the telecommuting agreement or telework agreement:
– Inventory of equipment needed for teleworking.
– List of expenses and quantification of the compensation of the telecommuter’s expenses and the time at which they are to be paid. This shall correspond to what is indicated in the agreement, if applicable.
– Working hours and availability rules.
– Distribution between face-to-face and remote work.
– Work center to which you belong.
– Location from where you will telework.
– Notice periods for the exercise of reversibility situations.
– Procedure in the event of technical difficulties preventing work.
– Means of company control of the activity, if any.
– Duration of the agreement. Instructions issued by the company, after consultation with the representatives, for data protection and information security specific to teleworking.
Modifications to remote work and percentage of face-to-face work
The remote worker may switch to face-to-face work or modify the percentage of face-to-face work on a voluntary basis.
The decision to telework is voluntary and reversible for both the company and the worker, and the request must be communicated within a prior period established in the agreement for such notice.
However, the regulation gives priority to the remote worker to fill vacancies that arise in face-to-face mode.
Rights of remote workers
The following must be guaranteed for telecommuters or teleworkers.
– Right to training: equal access and training necessary for teleworking shall be guaranteed. They may not suffer prejudice to any of their working conditions.
– Right to career advancement: they must be informed in writing of existing opportunities, even if they are face-to-face.
– Right to receive sufficient means: they shall be provided with the necessary equipment according to the Agreement’s inventory for teleworking.
– Right to compensation of expenses: the company must compensate the direct expenses related to the equipment and means linked to their work activity. Specific allowances may be included in the collective agreement.
– Right to flexible working hours: the worker may alter working hours, respecting work and rest regulations, in accordance with the limits established in the teleworking agreement signed with the company. In other words, flextime is only permitted if agreed with the company, not by default.
– Right to time recording: the time recording system must include the start and end of the working day, periods of activity, equipment activation time, preparation time for tasks and delivery. Without prejudice to flexible working hours. The new wording empowers the company to adopt the measures it deems appropriate for monitoring and control to verify that the worker fulfils his or her obligations, if they are means that respect his or her dignity.
– Right to prevention of occupational risks: the assessment must consider the characteristics of the job, including availability time, breaks, disconnections. The company must be informed of the risks to be able to prevent them. If there is a visit to the preventive site, it must be authorized by the worker and a written report must be issued.
– Right to privacy and data protection: the use of telematic means must respect the rights of the worker. The company may not require the installation of programs on devices owned by the worker, nor require the use of these computers for teleworking. Collective bargaining may develop these aspects.
– Right to digital disconnection: workers have the right to disconnect outside working hours. The company must guarantee the right to disconnection, limiting the use of business communication media during rest hours and respecting the maximum duration of the working day. This may be developed in a collective agreement.
– Collective rights: access to communication with workers’ representatives and activities organized by them must be guaranteed. As well as rights of a collective nature. The company must provide the necessary means. The Telework Law maintains a transitional period of 3 years to apply the regulation to labour relations that are already regulated by agreement or collective bargaining agreement that do not foresee a period of validity.
New penalties and infringements related to teleworking
Failure to formalize the employment contract in writing or to formalize the telecommuting agreement in accordance with the terms of the regulation will be considered a serious infringement.
The Law increases the amount of the penalties set out in Article 40 of the LISOS.
From 1 October 2021, the penalties for failing to draw up a teleworking agreement in accordance with the regulation will range from 751 to 225,018 euros, depending on the seriousness of the facts.
What do you think about the Telework Law? Have you started teleworking in your company? We would love to read your comments. Write to us below.
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