Dear Clients and Friends:
ROMERO PINEDA informs you that the Legislative Assembly approved in plenary session held on March 20 of this year the “Teleworking Regulation Law” which will enter into effect 8 days after its publication in the Official Gazette.
The aforementioned law contains 22 articles and its main purpose is to promote, harmonize, regulate and implement teleworking as an instrument for generating employment and modernizing public, private and autonomous institutions, through the use of technology, information and communication.
The approved law rules the teleworking modality commonly known as “Home Office”, adapting to technological advances that allow implementing this type or modality of work, defining said modality in article 2 as “a form of carrying out the non-present working relationship, totally or partially, for a certain time or indefinitely, outside the workplace and using information and communication technologies as support”.
The law establishes that this modality may be applied to the working relationships between both public and private employees.
The law regulates the modalities in which teleworking may be applied according to the place where the work will be performed:
- Self-employed: Employees who work from home;
- Mobile: Employees who will be able to move as they deem appropriate, not having a specific place to carry out teleworking, and
- Supplementary: Employees who work partially remotely and partially in the workplace.
On the other hand, regarding working hours and working shifts, teleworking can be classified as:
- Connected teleworking: By means of which the remote employee, during a working day, will be permanently connected to a platform and under supervision of the employer, and;
- Disconnected teleworking: By means of which the employee must not be connected to any platform and therefore will be able to accommodate the working schedule on a daily basis.
Both connected and disconnected teleworkers must comply and respect the working hours established in article 161 of the Labor Code
For this modality to be carried out, it is necessary to have a mutual agreement between the employee and the employer to carry out the tasks remotely as previously established. This type of working modality must be clearly stated in the Employment Agreement, so it is recommended that the parties agree upon it before starting the employment relationship. If the need to implement said modality arises having subscribed the Employment Agreement, it will be necessary to modify it by means of an addendum. In said Employment Agreement or addendum, it will be an indispensable to describe the place where the remote work will be performed; the tasks that the employee will perform; the programs and platforms that will be used; the mechanisms, means and control parameters that will be used to identify compliance with working hours, goals, efficiency measurement and performance by the employee.
The law also dictates that both the Employment Agreement and the Addendum must specify which of the parties will provide the necessary equipment and tools. In the event that the work equipment is voluntarily provided by the employee, the employee will have the right to be compensated for its depreciation.
If the equipment is provided by the employer, the employer must facilitate the provision of such equipment in order for the employee to be able to carry out updates, audits or maintenance of the equipment.
An essential point that must be addressed is that it is completely voluntary to implement the remote modality by the employee if the labor relationship initiated as presential and not remote, the employee will have a period of 30 days to request a transfer to his previous modality and the employer must agree to the request. However, if the remote modality was agreed from the beginning, any change in modality must be by mutual agreement between the employer and the employee.
It is important to mention that the teleworker will enjoy the same individual and collective rights in terms of social security, legal benefits, occupational safety, hygiene and freedom of association enjoyed by the employees working in the workplace.
By virtue of the current situation of the country due to the national Emergency recently decreed by COVID-19, the law contemplates as a transitory provision the possibility of applying teleworking for cases of national emergency, public calamity, or suspension regime of rights, being able in any of these cases to omit the need to sign a teleworking agreement or an addendum to the existing contract.
In everything relevant not regulated in this new Law, the Labor Code and other laws that regulate labor relations between employers and private employees will apply.
It will be a pleasure for us to assist you.