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14 October 2020
The health crisis triggered by COVID-19 has accelerated the already existing trend of facilitating and implementing remote working policies in Spain. However, forced remote working as a result of the pandemic has emphasised the lack of regulation in this area, not to mention the practical issues previously left unresolved.
Published on 23 September 2020, Royal Decree-Law 28/2020 (22 September 2020) on remote working (the Remote Working RDL) seeks to provide clearer guidelines in this regard.
The decree-law also paves the way for collective and individual bargaining to play a major role when it comes to the more practical and decisive components on which this new regulation only touches.
Against this backdrop, the challenge for companies is to reach clear and specific agreements with employees' representatives covering the most practical aspects of remote working, as well as to implement well-defined remote working policies.
When did the new regulation come into force?
The Remote Working RDL entered into force on 13 October 2020.
For employees who already worked remotely and whose remote working relationship was already regulated under a contract or collective agreement, the Remote Working RDL applies from the time at which said contract or agreement expires. Where such agreements have no specific term, the new regulation applies from 23 September 2021 – unless the signatories decide that it should apply at a later date, although in this case it must be applied from 23 September 2023.
If the remote working arrangement was not regulated under a collective agreement, individual contracts must align to the new regulation prior to 13 January 2021.
Does it apply to all remote workers? Are there any groups with special arrangements?
The new regulation applies to all employees who provide services for an organisation or under the direction of a company who work remotely on a regular basis.
The term 'regularly' means any employee who during a three-month period works remotely at least 30% (or an equivalent percentage based on their contract term) of the time.
The following groups are excluded:
Moreover, certain groups are subject to a set of specific features. For example, contracts entered into with minors, internships and training contracts must guarantee at least 50% on-site working.
In any event, it would be pertinent to agree or regulate the conditions that would apply to the employees who do not spend a sufficient amount of their schedule working remotely.
Can remote working be imposed or is it voluntary?
Remote working is voluntary for both employees and employers.
Companies cannot impose it unilaterally on objective grounds: employment legislation outlines other working conditions that may be modified where necessary to overcome possible financial, technical, organisational or production difficulties.
Can remote working be reversed? Will it be possible to go back to on-site working?
Yes, correctly regulating the reversibility of remote working is key: essentially, employers and employees can reverse the decision to work remotely after previous on-site working under the terms set out in the collective bargaining agreement or, failing that, the employment contract.
What formalities must be observed in order to implement remote working?
First, before beginning to work remotely, a written agreement must be drawn up and attached to the employment contract.
The agreement must set out the following, among other things:
Moreover, companies must provide employee representatives with copies of all remote working agreements and details of all actions taken. Once the above has been done, said copies will be sent to the employment authority.
Who provides the means for work to be performed remotely? Can employees be forced to use their own means to work remotely?
Employees are entitled to receive all resources, equipment and tools necessary to carry out their work from their employer, which employers must also undertake to maintain.
Moreover, employers must ensure that the necessary support is in place in the event of technical issues.
The Remote Working RDL does not specify which equipment and resources are considered necessary for work to be performed: this should be regulated under a collective bargaining agreement. In any case, the resources listed in the inventory included in the remote working agreement must be provided.
Can employers force employees to install programs or apps on their personal devices?
No, employers cannot force employees to install programs or apps on their personal devices or use such devices to perform their work.
If employees incur costs due to remote working, who pays?
Companies must bear the costs relating to the resources, equipment and tools linked to the activity performed by remote employees. These costs cannot be passed on to employees.
The Remote Working RDL does not clarify how these costs will be determined or paid, leaving it to the collective bargaining agreements to regulate these matters.
Which features must be taken into account in terms of working hours and schedules? Will they be the same as those working on-site?
When employees work remotely, they must continue to register their working day – notwithstanding the greater flexibility which may be afforded by working remotely.
In this regard, employees working remotely may adjust their schedule, albeit respecting their mandatory availability periods at all times, not to mention the rules regarding minimum hours and breaks.
How does the right to digital downtime apply?
Following the mass implementation of remote working in March 2020 due to the COVID-19 pandemic, one of the most controversial issues has been switching off from work.
For that reason, the Remote Working RDL clarifies that the right to digital downtime applies to remote workers.
Companies must guarantee downtime. Among other things, this means capping the use of work-based communication technologies during rest periods.
Following consultation with employee representatives, companies must draw up an internal policy to ensure and raise awareness of the right to digital downtime.
Do companies have occupational risk prevention obligations?
Yes, occupational risk prevention obligations still apply. However, employers must adapt their risk assessments and prevention planning to include the risks associated with remote working. Risk assessments must be carried out only on the area designated for remote working as opposed to the entire location (eg, the employee's home). Where there is a need to enter said location for assessment purposes, the employee must provide their full consent.
Can companies monitor their employees' work?
Yes, albeit as long as they respect each employee's privacy and dignity. In this regard, the monitoring of online resources is permitted.
Having said that, companies must set out the criteria for using the online resources that they provide, upholding the minimum guidelines on the protection of their employees' privacy.
For further information on this topic please contact César Navarro, Elena Esparza, Carmen Bardi or María José Ramos at CMS Albiñana & Suarez de Lezo by telephone (+34 91 451 9300) or email (firstname.lastname@example.org, email@example.com, firstname.lastname@example.org or email@example.com). The CMS Albiñana & Suarez de Lezo website can be accessed at www.cms.law.
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