New law on teleworking and distance working in Spain

Finally, the new law on teleworking was approved. This text, which regulates teleworking, was enshrined in RDL 28/2020 of 23rd September.

Teleworking has been boosted in recent months by the health crisis caused by COVID-19. Until now, our distance work system has been regulated by Article 13 of the Workers’ Statute. Its content and regulation have been insufficient.

With the recent publication, the criteria and rights of both companies and workers are established. To regulate the distance working relationship or teleworking between the parties.

The experts of our Labour Consultancy summarize this new law.

New law on teleworking

Definition of the concept of work in its different forms

The new regulation defines the different ways of providing services:

Distance working. Form of work organisation or performance of the work activity according to which it is provided at the worker’s home. Or in the place chosen by the worker, during all or part of the working day, on a regular basis.
Teleworking. Work at a distance that is carried out exclusively or predominantly using computer, telematic and telecommunication means and systems.
Presential work. Work that is carried out in the workplace or in the place determined by the company.

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Distance work or teleworking

In order to be considered as distance work, at least 30% of the working day must be spent in this mode, within the reference period of 3 months or the equivalent percentage, depending on the duration of the contract.

In employment contracts concluded with minors and in training and apprenticeship contracts, which were previously excluded from distance work, they will now be able to telework if at least 50% of the working day is spent in person.

Distance working is voluntary for both the worker and the employer and will require the signing of the distance working agreement, which will set out the terms and conditions of the provision of services. In any case, it must be formalized in writing, before the distance work begins. Likewise, any novation under the conditions established in the distance working agreement must be documented, including the percentage of attendance, prior to the application of these conditions.

Peculiarities of the teleworking agreement

This agreement will also be compulsory for workers who were already teleworking before, and must be formalised within 3 months of the entry into force of the standard. This will take place from 13 October 2020.

Either of the parties may decide when the provision of services will cease to be carried out in the form of distance working, and will return to face-to-face work. The exercise of this reversibility may be exercised under the terms established in the collective bargaining agreement or, failing that, in those established in the distance working agreement itself.

Persons who carry out distance work from the beginning of the employment relationship during their entire working day shall have priority to occupy jobs that are carried out totally or partially in a face-to-face manner. For this purpose, the company shall inform these people who work remotely and the legal representation of the workers of the vacant jobs that occur in person.

The collective bargaining agreements may establish the mechanisms and criteria by which the person carrying out face-to-face work may switch to distance work or vice versa, as well as preferences linked to certain circumstances, such as those related to training, promotion and stability in the employment of persons with functional diversity or with specific risks, the existence of multiple employment or multiple activities or the concurrence of certain personal or family circumstances, as well as the order of priorities established for this purpose.

Failure to adapt to teleworking, refusal to change its mode at a distance, or the request to reverse teleworking shall not be grounds for dismissal.

Minimum mandatory content of the distance working or teleworking agreement

Without prejudice to the regulations contained in collective agreements,

The following will be the minimum mandatory content of the distance working agreement:

Inventory of the means, equipment and tools required for the development of concerted distance work, including consumables and furniture, as well as the useful life or maximum period for renewal of these.
List of the expenses that the worker may have due to the fact of providing distance services, as well as the way of quantifying the compensation that the company must obligatorily pay and the time and way to carry it out, which will correspond, if it exists, to the provision included in the applicable collective agreement or arrangement.
Working hours of the worker and, if applicable, rules of availability.
Percentage and distribution between presential and distance work, where applicable.
Work centre of the company to which the distance worker is assigned and where, if applicable, he/she will carry out part of the face-to-face working day.
Distance work place chosen by the worker for the development of distance work.
Duration of notice periods for the exercise of reversibility situations, where applicable.
Means of business control of the activity.
Procedure to be followed in the event of technical difficulties that prevent the normal development of distance work.
Instructions issued by the company, with the participation of the legal representation of the workers, regarding data protection. Specifically applicable to distance work.
Instructions issued by the company, after informing the legal representation of the workers, regarding information security. Specifically applicable to distance work.
Duration of the distance working agreement.

Teleworking agreement

Once the distance working or teleworking contract has been formalised, the company must provide a copy of all distance working agreements to the workers’ legal representation within 10 days. The company will sign the contract to record the delivery.

Subsequently, it will be compulsory to send a basic copy of the signed agreement to the employment office.

Remote workers’ rights

The RDL includes a series of rights that must be guaranteed in the provision of distance services or teleworking:

The right to training. Equal access and the necessary training for teleworking will be guaranteed. They may not suffer prejudice in any of their working conditions.
Right to professional promotion. They must be informed in writing of the existing vacancies that may be subject to promotion in the worker’s professional career, even if these are in the face-to-face mode.
Also the right to the sufficient provision and maintenance of means, equipment and tools. They will be provided with all the means, equipment and tools necessary for the development of the activity. In accordance with the inventory included in the agreement between the parties. Or, where appropriate, in accordance with what is agreed in the applicable collective agreement.
Right to payment and compensation of expenses. The development of distance work must be paid for or compensated by the company. And may not involve the assumption by the worker of expenses related to equipment, tools and means linked to the development of their work activity. The agreements or collective agreements may establish the mechanism for determining and compensating or paying for these expenses.

Rights relating to working time.

Right to flexible working hours under the terms of the agreement. It will be in accordance with the agreement between the parties, as well as the terms established in the collective bargaining. Respecting mandatory availability times and regulations on working time and rest.
Right to time recording. The system of hourly registration regulated in Article 34.9 of the Workers’ Statute, in accordance with that established in the collective bargaining. It shall faithfully reflect the time that the worker who performs remote work dedicates to the work activity, without prejudice to flexible hours. It shall include, among others, the time at which the workday begins and ends.
The right to digital disconnection. Workers shall have the right to disconnect outside their working hours. The company must guarantee the right to disconnection. Limiting the use of business communication media during rest hours and respecting the maximum length of the working day. These aspects may be developed in collective bargaining.
Collective rights. Access to communication with workers’ representatives and activities organised by them must be guaranteed. The company must provide the necessary means for the development of collective rights.

Rights relating to safety

Application of preventive regulations in distance work. The assessment should take into account the characteristics of the distance activity, paying particular attention to psychosocial, ergonomic and organisational factors. Will be taken into account the distribution of the day, time of availability, breaks and disconnections.
The risk assessment should only cover the area authorised for the provision of services. It should not extend to the rest of the areas of the home or the place chosen for the development of distance work. In the event of a visit to the point from which services are provided, it must be authorised by the worker.
Right to privacy and data protection. The use of telematic means must respect the right to privacy and data protection, under the terms provided in Organic Law 3/2018, of 5 December. The company may not demand the installation of programs on devices owned by the worker. Nor may it demand the use of these for teleworking. These aspects may be developed in collective bargaining.

Faculties of organisation, management, and business control in distance work

Data protection and information security. When carrying out remote work, workers must comply with the instructions established by the company within the framework of data protection legislation.
- Workers must comply with the instructions on information security specifically laid down by the enterprise in the field of distance work.
Conditions and instructions for the use and maintenance of computer equipment or tools. Employees must comply with the conditions and instructions for use and maintenance established by the company. In relation to computer equipment or tools, within the terms that, where appropriate, are established in collective bargaining.
Powers of corporate control. The company may adopt the measures it deems most appropriate for monitoring and control to verify compliance by the worker with his or her labour obligations and duties. This includes the use of telematic means. The adoption and application of such measures shall take into account the worker’s dignity. And taking into account, where appropriate, the real capacity of workers with disabilities.

Main doubts

What happens to companies that are teleworking due to force majeure caused by COVID-19?

Companies that have applied teleworking exceptionally according to article 5, of RDL 8/2020, are exempt from the obligation to formalize a teleworking agreement between the parties.

Likewise, the obligation to carry out an occupational risk assessment, through a mere voluntary self-assessment of the workers, will be understood to have been fulfilled.

However, companies are obliged to provide the necessary material to carry out the remote work. And pay those expenses incurred for the development of the activity.

What about workers who were already teleworking before the regulation?

They will have to sign an agreement with their company on the conditions of teleworking. According to RD Law 28/2020, within a non-renewable period of 3 months. This will end on 13 January 2021. This agreement will regulate the provision of distance services or teleworking between the parties. And that it will set deadlines and requirements on which subsequent amendments may be made.

Under no circumstances may the signing of a new agreement imply compensation, absorption or disappearance of more beneficial rights or conditions which they were enjoying.

If this modality is regulated in a collective agreement, the new rule will be applicable when the agreement expires. If no end date has been set for the agreement, it will apply after one year. Unless an extension is agreed for the application of the new text, which may not exceed 3 years.

Penalty system

Not formalizing the employment contract in writing. Or not formalizing the distance working agreement in the terms established in the new regulations, may be considered a serious infringement. With fines between 626 and 6,250 euros, depending on the seriousness of the offence.

Whatever the case of your company, do not hesitate to contact us.