New regulation of remote working

RD Law 28/2020 identifies distance working as a form of work organisation or the carrying out of work activity under which it is carried out in the worker's home or in a place chosen by him/her, during all or part of the working day, on a regular basis. In this sense, remote working is understood to be "regular" when, in a reference period of 3 months, a minimum of 30% of the working day is provided in remote working (or the equivalent percentage in part-time contracts).  Telework, on the other hand, is defined as distance work carried out through the exclusive or prevalent use of computer, telematic and telecommunication means and systems.

Prior to indicating the characteristic notes introduced in the corpus of the regulation, it should be pointed out that RD Law 28/2020 does not apply to the following remote working situations:

a) Remote working exceptionally implemented as a measure to contain the health crisis caused by Covid-19.

b) Remote working situations which existed prior to 13 October 2020 and which were regulated by collective agreements or other collective arrangements, until these cease to be in force.

However, RD Law 28/2020 does apply to those remote working agreements of an individual nature in force at the time of publication of the regulation (22 September) and not derived from collective agreements or other collective arrangements. Therefore, workers who have already been providing their services remotely must formalise the corresponding agreement, or make the corresponding adaptations or modifications to the agreements in force, within a period of 3 months.

RD Law 28/2020 introduces the following principles and formal requirements for the provision of remote services:

1. Voluntary and reversible: remote work is voluntary for both the worker and the company, and therefore cannot be imposed.
2. Limitations: in employment contracts entered into with underage persons, and in training and apprenticeship contracts, a remote working arrangement shall be possible only where it is ensured that at least 50% of the services are provided in on site.
3. Formalities: the agreement must always be in writing, and can be agreed at the beginning of the employment relationship or at a later time. Any modification of the agreement must be in writing and agreed with the company or the employee, if applicable. The company must also provide a copy of the agreement to the employees’ representatives (within a maximum of 10 days from its formalisation), who must sign it in order to prove delivery. This copy of the agreement must then be sent to the corresponding employment office.

- Minimum mandatory content of the agreement:

• Inventory of the assets, equipment and tools necessary to carry out the activity (including consumables and furniture), indicating their useful life or maximum period of renewal
• Listing of expenses and indication of the form of quantification of the compensation to be paid by the company, as well as its time and form of payment
• Working hours and availability guidelines
• Workplace of the company to which the employee is assigned
• Remote location designated by the employee
• Duration of notice periods for the exercise of reversibility
• Methods of corporate control of the activity
• Procedure to be followed in the event of technical difficulties preventing normal remote working
• Instructions issued by the company, with the participation of employee representatives, on data protection and information security
• Duration of the distance working agreement

- Employees’ rights: employees who work remotely have the same rights as those who work at the company’s workplaces. Specifically, RD Law 28/2020 emphasizes that they have the right to training, professional promotion, sufficient provision and adequate maintenance by the company of all means, tools and equipment necessary for the development of the activity, the right to payment and compensation of expenses, the right to flexible working hours under the terms set out in the agreement, the right to privacy and data protection, the right to time recording, the right to digital disconnection outside working hours (which will require the approval of an internal policy defining the modalities for the exercise of this right) and rights of a collective nature.

- Company monitoring faculties: the company has the faculty to adopt monitoring and controlling measures. However, the company may not, under any circumstances, require the installation of programs or applications on devices owned by the employee, or the use of these devices for the provision of the activity.

- Prevention of occupational risks: the company must guarantee the right of employees to adequate protection in terms of health and safety at work, carrying out the corresponding risk assessment. If the person responsible for prevention requires a visit to the place where the services are provided, a written report must be issued to justify the visit and given to the employee and the prevention representatives. In any case, the visit will require the consent of the employee, and may only include the area enabled for the provision of services, not extending to the rest of the residence. If the employee does not agree to the visit to his/her home by the prevention representatives, the development of the preventive activity by the company will be based on the determination of the risks derived from the information collected from the employee, according to the instructions of the occupational risk prevention service.

Finally, it should be noted that the RD Law establishes a specific legal procedure, of urgent and preferential nature, for complaints about access, reversal and modification of remote work.

The approval of RD Law 28/2020 is an important milestone in labour regulations, updating the scarce regulations in force and establishing clear lines of action for employers and workers. Despite the positive aspects of this regulation, the norm does not exhaust the issue, as it leaves the most controversial elements (compensation of expenses, for example) of this form of service provision in the hands of the social agents.