The Ministry of Labor has already drafted the draft telework law. Companies must pay “in full” for the expenses incurred by the worker from home, both direct and indirect. Another point, completely new, is that the “right to flexible hours” is established that allows those who work remotely to “alter” their working day. However, it sets limits as they must “respect the regulations on working time” and whenever “previously agreed with the company” the period of availability. The text, to which this newspaper has had access, must now be negotiated with the social partners, to whom it has already been sent. It also has to be approved by the Council of Ministers and go through Congress and the Senate.
The teleworking law – Distance Work Law, as the official name goes – is about to take its next step. The first was given by the Ministry of Labor a few weeks ago when it opened a period of public consultation that ended on Monday. Now you have the draft text ready. The document begins by defining what telework is and differentiating it from remote work. The first would be that which is done “through the exclusive or prevalent use of a computer, telematic and telecommunication means and systems.” The other would be the one carried out from the place chosen by the worker for the whole day or part of it. Also, it defines what face-to-face work and occasional remote work is.
The standard contains 21 articles, a transitional provision, and four additional ones. The preliminary draft specifies points that, in some cases, are already included in the norm, although dispersed in various laws such as the Workers Statute, the 2012 labor reform –which developed some aspects of remote work– and the protection law, which established the right to digital disconnection in 2018. It also produces many others, some of which show the influence of these months of massive telework forced by the coronavirus.
During the pandemic and with the restrictions on activity and movements decreed to combat COVID-19, teleworking and remote work have experienced a trial that, on many occasions, has not been carried out under the best conditions. The Government recommended it and facilitated it by relaxing some legal requirements – as happened with the adaptation of the jobs. However, in these months, the Minister of Labor, Yolanda Díaz, has warned that this has been an exceptional situation that has forced her to adopt decisions to facilitate this type of work and that she intended to regulate it, taking into account the experience lived.
This announcement – and the situation caused by the pandemic – has sparked a debate in which the Governor of the Bank of Spain himself, Pablo Hernández de Cos, intervened this week acting as “Pepito Grillo,” in his own words. The central banker warned that if society wants it, it must be promoted, but that it can weigh down productivity.
These are the highlights of the draft:
Willfulness. Remote work is voluntary for the employee and must begin with an agreement between the employee and the employer that must be in writing. This text will have to include an inventory of the necessary material, a “compensation mechanism for all direct and indirect expenses,” the schedule, the workplace to which the employee is assigned, and the means of control that the company will have.
Choice of time. Article 13 of the norm indicates that the worker “may alter the hours of provision of services established, respecting the regulations on working time and rest.” However, this freedom is not absolute because the rule itself establishes a clear exception: that the mandatory agreement fixes “the times of mandatory absolute availability or the limits that could have been established in this regard.”
Who pays the costs. In this, the norm is apparent. He speaks of “the right to full compensation for expenses” and points out that remote work cannot entail “direct or indirect costs related to the equipment, tools, and means linked to the development of his work activity.” This point could be deduced from the current norm because discrimination is prohibited between face-to-face work and that which is not. But this point supposes a clarification, even more after the extensive experience of teleworking lived during the pandemic that has led to that in many cases. This has not been the case.
What the rule does not dictate is how such compensation should be carried out. However, it opens the agreements establishing formulas to do so, “which may consist of specific supplements that, in any case, must guarantee the complete compensation of those.”
Force Majeure. The influence of experience during the pandemic is most clearly seen in the two articles that regulate force majeure. Companies require that when these causes occur – including “reasons of environmental protection” – companies must commit to remote work “whenever it is technically and reasonably possible.” This requirement has consequences since this measure should be applied before ERTEs. Workers, for their part, will be able to work remotely for 60% of the working day “due to force majeure.” Again, put a limit to the right, that “is technically and reasonably possible.”
Digital disconnection. In Spain, digital disruption is guaranteed to workers in regulation on personal data protection law and guarantee of digital rights. Now, this rule goes one step further in the case of remote workers since it is exhaustive in establishing “the business duty to guarantee disconnection entails an absolute limitation on the use of technological means of business and work communication during periods of a break.” Also, the norm refers to collective agreements so that they can develop how to establish practical measures that guarantee the right to disconnect. The objective is to avoid, as the explanatory statement says, the so-called smart working (work anytime, anywhere).
Equality. The standard also places great emphasis on teleworking, not creating inequalities. The current regulation already states that these workers have the same rights as those who go to the company. Now, also, something more is developed by detailing that these employees “will not suffer prejudice in their working conditions, including remuneration, job stability, and career advancement.” It also establishes for companies the obligation to keep in mind the particularities of these jobs in the protocols against harassment.