Last week the Ministry of Development, Labor, and Technology published a long-awaited draft amendment to the Labor Code. The changes concern the introduction of full regulation of remote work. As previously announced, the entire chapter on telework would be repealed. Instead, there will be a new regulation of remote work – including existing teleworkers. At the same time, all existing teleworkers would have to become remote workers by the end of 6 months from the date of entry into force of the amendment.
New definition
The draft includes a new definition of remote work. It will be work that an employee will perform entirely or partially at a place indicated by him or her and agreed upon with the employer. This may (but does not have to) be the place of residence of the employee. The employee must have access to means of direct remote communication. This provision, therefore, aims to exclude the performance of work in a place indicated by the employer from being considered remote work. Even if it is not the workplace. Moreover, the obligation of “regularity” of performing work in a place other than the workplace, which is a special feature of telework, disappears. Remote work is thus meant to cover a much wider group of employees than telework while excluding other groups (such as mobile workers).
Order to perform remote work – special cases
The employer will retain the authority to order remote work in several cases. During: a state of emergency, a state of epidemic emergency, or a state of epidemic emergency and for 3 months after their cancellation. Additionally, this privilege will also exist when, for reasons beyond the employer’s control, the employer is unable to provide the employee with safe and hygienic working conditions. Importantly, the order will be revocable at any time.
“Permanent” versus “occasional” remote work
The employee and the trade union will have the greatest influence on the rules of remote work. They will define them individually or in regulations agreed upon with employee representatives. In the absence of such an agreement or regulations, the employer is obligated to agree with the employee or, in the case of an order for remote work in specific cases, to include in the order those issues that should be determined by an agreement. The following should therefore be regulated, among others: the principles of covering the costs of materials and work tools, payment of an allowance/lump sum for installation, maintenance of equipment, electricity and Internet usage, principles of remote communication, work inspection, and occupational health and safety inspection. Once the employee has been working remotely under the agreement/rule for 3 months, it will not be possible to force the employee to return to the regular model. It will be necessary to give a change notice or enter into an agreement.
The above obligations will look different in one case. The legislature is introducing a category of “occasional” remote workers, granting each employee up to 12 days of remote work per year. The request for remote work should, to the extent possible, be granted by the employer, and the above-mentioned strictures will not apply to such employees.
Summary
It is not yet certain that the amendment to the Labor Code will ultimately pass in this form. Nevertheless, changes will certainly become noticeable. Not only will the understanding of remote work change again. The draft will also introduce some new obligations for employers intending to partially allow work in this mode, above 12 days per calendar year. This issue will partially overlap with the existing rigors of telework.
Similarly, it will be necessary to re-regulate employment relationships previously concluded with teleworkers. This is because there is currently no provision under which teleworkers would be treated as remote workers by operation of law. However, the draft is only in the consultation phase. This means that the shortcomings and “over-regulation” of remote work can still be corrected.