Since the pandemic, a phenomenon that has been called as digital nomads, which are workers who telework remotely from another state other than the one in which they are hired.
The reasons that drive this movement can be diverse: higher quality of life, the option of being able to spend more time with the family, geographical flexibility, choosing to live in friendlier climates, exploiting economic differences and monetary prices in their favor to stretch salaries, Enjoy long-term travel or be master of your time.
Companies allow these relationships in order to retain or attract talent, regardless of geographical barriers.
The situation is that the worker generates wealth and is inserted in the labor market of the country in which he is hired, and not in the one in which he resides. In turn, the worker consumes and enjoys public services in the country of residence.
This situation does not fit into Spanish labor regulations, therefore a new situation occurs that is not regulated. In this article we are only going to analyze the situation from a labor perspective, without taking into account other aspects such as fiscal ones, and within all the possibilities that exist we will focus on companies that carry out their activity in Spain and hire Spanish or foreign workers who They are going to telework outside of Spain.
Giving a practical view of the situation, in the Royal Decree-Law 28/2020, of September 22 The situation of remote work was regulated by which the parties can agree between the parties to carry out the work remotely, meeting a series of requirements on the part of the company and the workers. The problem is that this regulation, which modified article 13 of the Workers' Statute, does not mention the possibility of carrying out work outside of Spain.
The European Union is trying to solve this issue, but it has not been fully addressed and therefore there is still no specific regulation for this phenomenon.
Recently published a Framework agreement of June 30, 2023 (BOE August 4), relating to the application of Article 1(16) of Regulation (EC) No 883/2004 in cases of habitual cross-border teleworking, but for these purposes the rule established is that, upon request, the salaried teleworker will be subject to the Social Security legislation of the State in which the employer has its headquarters or domicile, provided that cross-border teleworking carried out in the State of residence is less than 50% of the total working time (art. 3). If we analyze this rule in detail we will see that workers in this situation will be exceptional, therefore, it does not cover the specificity we are talking about.
Therefore, the specific procedure to be able to have workers in this situation is as follows:
- In the event that they are Spanish workers who want to telework abroad, the company will have to communicate the transfer to the destination country (as long as there is a bilateral agreement) and this may not exceed 12 months. If it continues, it will be necessary to go requesting extensions of the posting that in no case may exceed 5 years. The General Treasury of Social Security has facilitated this type of travel since it is not essential to indicate in which company you are going to do your work abroad. It must be taken into account that this modality existed for those companies that have to send workers to their clients abroad to perform a certain service (installation or maintenance of machinery, etc...)
- If you are a foreign worker, you will have to obtain a residence and work permit in Spain, so that the company can hire you and subsequently move you to the corresponding country, following the previous steps in section a).
From what has been mentioned, these situations allow a worker to telework in a European country or with which there are bilateral agreements, having health care covered.
Although this modality raises many doubts, since it is possible that according to bilateral agreements the worker must pay for assistance and subsequently claim it from the Spanish health system, also in the case of having a family, this would not be covered by the Spanish health system if they reside in abroad. In the event of accidents, coverage may be complicated when submitting the accident report to the Mutual Insurance Company, if the accident occurs at the home. Regarding risk prevention, no one assumes that the job is appropriate, although the company is responsible, etc.
Likewise, in the event of termination from the company, the worker would not be able to receive unemployment benefits if he continues to reside abroad.
Obviously all these aspects must be taken into account when hiring a posted worker in another country and we can conclude that we still have to make progress in this aspect until we achieve a regulation that can give real coverage to this type of workers.
From Tomarial Lawyers, Economists and Consultants, we can help you individually resolve each case that may arise in your company, giving the best solution to each case. Contact us and we will analyze your case.
Salvador Mut
Tomarial Labor Department Director
