On March 23 of the current year, Decree 86/022 regulating Law 19978 ” On Approval of Norms for the Promotion and Regulation of Teleworking ” entered into force.
This Decree appears as a clarifying element of the Law and is added to the regulatory framework of this new work modality rapidly imposed by the pandemic, which has been beneficial in certain work areas, not only due to increased productivity but also due to the reduction of fixed costs of the employer companies and the reduction of labor absenteeism.
The Decree formally introduces the concept of “ hybrid work ” (art. 1) for cases in which the provision of work is partially outside the physical environment provided by the employer, predominantly using information and communication technologies, either interactively or not (online – offline).
Contract formalities and requirements (art. 3) .
The Decree establishes that the contract that regulates teleworking must be in writing and can be signed before or during the employment relationship, that is, a relationship that began face-to-face can become teleworking by agreement between the parties and vice versa.
In turn, it establishes the basic aspects that must be included in the contract:
– Choice of modality;
– Indication of the place or places from which the telework will be provided, or, where appropriate, the possibility that the teleworker chooses them freely;
– Organization of the hybrid work regime;
– Declaration and establishment of schedules;
– Establishment of rest times (intermediate, between days and weekly) and disconnection;
– Time and attendance record system with a brief description of it, in those cases in which the employer decides to implement such records;
– Form of provision of information technologies.
The teleworker must communicate any change of address, or of the health and safety conditions of the workplace, whether temporary or permanent.
Change of work modality (art. 4) .
The permanent modification of the work modality (face-to-face – virtual or hybrid) requires an agreement between the parties and, as mentioned above, must be in writing.
In addition, “permanent modification” is defined as those variations that determine that the provision of work is carried out in one or another modality for more than 45 days.
In the case in which the employment contract has been initiated in person and has become teleworking, a period of 90 days is established to return to the face-to-face modality, with only a written communication or by any electronic means with advance notice of at least 7 days.
Work Day (art. 5) .
Regarding working hours, the Decree allows teleworkers to organize their working hours in accordance with the maximum limit of weekly hours that is applicable according to their activity (44 or 48 hours per week). This power of discretion of the teleworker will be limited specifically by the hours of operation and needs of the company.
One detail to keep in mind is that extraordinary work will be considered and paid as such, with the corresponding rate, when it exceeds the maximum weekly limit and not the daily limit.
Lastly, it is expected that if the agreed scheme were the “hybrid” one, the possible distribution of hours in the week would apply equally to all the days worked, not only those carried out remotely.
Right to disconnect (art. 8) .
The teleworker will have the right to disconnect for a period of 8 hours between their shifts, this period will be agreed between the parties and will be recorded in writing. During the disconnection, the teleworker will have the right not to perform tasks for the employer and the possibility of being sanctioned for it is prohibited.
Attendance record (art. 6) .
In the work contract or agreement, a teleworker assistance control mechanism may be established, taking into account the privacy of the teleworker and his or her family.
Social Security and Health (art. 7) .
Employers must integrate the occupational risks of teleworking into their health and safety management system, and must identify and assess the risks to which their teleworkers are exposed, including psychosocial and ergonomic risks.
The General Inspectorate of Labor and Social Security (IGTSS) within its supervisory role may request the employer to report on the risks identified and the preventive measures to be adopted in the location from which the telework is provided in order to comply with the standards of health and safety that govern each activity.
The IGTSS may also inspect the place of teleworking, when it is carried out within the home of the teleworker with their prior consent (if not, with judicial authorization), and may verify health and safety conditions of the place from where the tasks are provided. In case of identifying irregularities, remote work may be suspended until the non-compliance with health and safety regulations is resolved or the place from which the telework is carried out is modified (without prejudice to the application of possible sanctions to the employer).
Tools and equipment (art. 9) .
In relation to equipment, supplies and services, the parties may agree on the form of provision, in case of silence, the employer must provide them.
The teleworker will be responsible for its care and exclusive use, as well as reporting in case of malfunction, damage or any other circumstance that prevents its use.