The new Law 10/2021 on distance work it was published by the BOE on July 10 and entered into force on July 11. A law that has its origin in Royal Decree-Law 28/2020, which established the regulation of teleworking. The new standard reproduces the content of RDL 28/2020, and like this, it will not apply to companies that have implemented teleworking as a health containment measure derived from COVID-19, although companies are obliged to provide their workers of the means necessary to carry out remote work, and to compensate existing expenses in the manner established through collective bargaining.
Law 10/2021 includes the necessary legislative modifications to adapt social legislation to the regulation of remote work (Workers' Statute -ET- art. 13, 23.1 and 37.8; Law of Infractions and Sanctions in the Social Order -LISOS- art 7.1) and a new article in the Regulatory Law of Social Jurisdiction -LRJS- that creates a special judicial procedure applicable to claims related to the right of access, reversion and modification of remote work (LRJS art. 138.bis). The new rule consists of 22 articles, 7 additional provisions, 4 transitory and 14 final.
News in the new telework regulation
- The causes of discrimination prohibited in the telework regulation are specified, establishing the obligation of companies to avoid any discrimination, direct or indirect, particularly, in addition to gender, age, seniority or professional group or disability, of people workers who provide services at a distance. It also obliges the company to ensure equal treatment, the provision of support, and to make reasonable adjustments that may be appropriate (article 4.3).
- In relation to the business obligation to provide and maintain workers with the means, equipment and tools necessary for the development of the activity, in relation to people with disabilities, the obligation is added to ensure that these means, equipment and tools are universally accessible, to avoid any exclusion for this reason (art.11)
- Regarding the risk assessment and planning of the preventive activity of remote work, in which the risks characteristic of this work modality must be taken into account, it is added as a factor of attention together with the psychosocial, ergonomic and organizational , the accessibility of the effective work environment (article 16.1).
- In the exercise of corporate surveillance and control measures to verify compliance by the worker with their obligations and work duties, the obligation to take into account, where appropriate, their personal circumstances, such as the occurrence of a disability ( art.22).
- A provision regarding the reference address is added in order to consider the competent Labor Authority and the applicable public employment promotion services and programs, It is established that it will be the one that appears as such in the employment contract and, failing that, the address of the company or of the center or physical place of work (available add. 3).
Issues to consider
What is remote work?
It is working for the company but at the domicile of the worker or in the place chosen by the latter, during all or part of their working day.
And work in this way on a regular basis, understanding by this that remote work is provided, in a reference period of three months, for a minimum of thirty percent of the day, or the equivalent proportional percentage depending on the duration of the employment contract.
What workers does it apply to?
To employed workers.
Difference between "remote work" and "telework"
At the dialectical level, both terms are used, but they are two different concepts. A) Yes:
- Distance work: one in which the work activity is provided at the home of the worker or in the place chosen by him, during all or part of his working day, on a regular basis.
- Telework: that distance work that is provided through the exclusive or prevalent use of computer, telematic and telecommunication means and systems.
Does the employee who works remotely have the same rights as the one who does it in person?
People who carry out remote work will have the same rights that they would have if they provided services in the company's workplace, except for those that are inherent to the performance of the work provision in person, and they may not suffer damage in any of their working conditions, including pay, job stability, working time, training and career advancement.
Thus, they will have the same rights:
- Remuneration
- They may not undergo modification in the agreed conditions, in particular in terms of working time or remuneration, due to difficulties, technical or other not attributable to the worker, which could eventually occur, especially in the case of teleworking.
- Companies are obliged to avoid any discrimination, direct or indirect, particularly on the basis of sex, age, seniority or professional group or disability, of workers who provide services at a distance.
- Companies are obliged to take into account teleworkers or remote workers and their work characteristics in the diagnosis, implementation, application, monitoring and evaluation of equality measures and plans.
- The effective participation in the training actions of people who work remotely must be guaranteed, in terms equivalent to those of people who provide services in the company's workplace; They must also guarantee the necessary training for the proper development of their activity both at the time of formalizing the distance work agreement and when there are changes in the means or technologies used.
- They have the right, in the same terms as those who provide services in person, to professional promotion, the company having to inform them, expressly and in writing, of the possibilities of promotion that may occur, whether in the case of positions of face-to-face or remote development.
- They have the same rights as face-to-face workers in matters of conciliation and co-responsibility, including the right to adapt to the working day established in article 34.8 of the Workers' Statute (ET).
Can distance work be imposed by any of the parties to the employment relationship?
Distance work will be voluntary for both the worker and the employer, and will require the signing of the distance work agreement, which is regulated in the standard. It cannot be imposed.
Once remote work is established, can you return to face-to-face work?
The Law allows the decision to work remotely to be reversed, both for the company and for the worker.
How should the agreement for remote work be made? Can it be modified?
In writing and before it starts. Yes, it can be modified, by agreement between the parties.
Content of the distance work contract
As a minimum content the following is established:
- Duration.
- Reversibility and notice periods for it.
- Inventory of the means, equipment and tools required for the development of the concerted remote work, including consumables and furniture elements, as well as the useful life or maximum period for their renewal.
- Enumeration of the expenses that the worker may have for the fact of providing services at a distance, as well as a form of quantification of the compensation that the company must pay and the moment and form to carry it out, which will correspond, if any, with the forecast included in the applicable collective agreement or agreement.
- Working hours of the worker and within it, where appropriate, availability rules.
- Percentage and distribution between face-to-face work and remote work, if applicable.
- Work center of the company to which the remote worker is assigned.
- Remote workplace.
- Means of business control of the activity.
- Procedure to follow in the event of technical difficulties that prevent the normal development of remote work.
- Instructions issued by the company, with the participation of the legal representation of the workers, in matters of data protection and information security, specifically applicable in remote work.
Cost of means to work remotely
People who work remotely have the right to the provision and adequate maintenance by the company of all the means, equipment and tools necessary for the development of the activity, in accordance with the remote work agreement and with the established terms, in where appropriate, in the applicable collective agreement or agreement. The company must also guarantee precise attention in the case of technical difficulties, especially in the case of teleworking. In no case can it suppose the assumption by the worker of expenses related to the equipment, tools and means linked to the development of their work activity.
Should the day be recorded?
Yes, it is an obligation also applicable to remote work; Therefore, the time registration system should reflect the time that the worker who performs remote work dedicates to the work activity.
Control of the activity of the remote worker
The company can control that the employee who works remotely complies with his obligations and with the working time that corresponds to his day. But this control must respect the right to privacy and data protection, in the terms provided in Organic Law 3/2018, of December 5, on the Protection of Personal Data and guarantee of digital rights, in accordance with the principles of suitability, necessity and proportionality of the means used.
Right to digital disconnection
The working person has the right to digital disconnection, outside of their agreed working hours.
How is the telecommuting provision of those who already carried out telework before this rule regulated?
Law 10/2021, of July 9, will be applicable from the moment in which the collective agreements or agreements that regulate the provision of remote services lose their validity; or, if it does not have an effective date, after one year has elapsed from the publication in the "Official State Gazette", unless the signatory parties expressly agree to a longer term, which may be a maximum of three years.
Does the new rule apply to remote work situations due to COVID?
Remote work implemented in application of article 5 of Royal Decree-Law 8/2020, of March 17, or as a consequence of the health containment measures derived from COVID-19, and as long as these are maintained, it will continue to result from application of ordinary labor regulations, the new norm not being applied to these situations.
Contact Tomarial to resolve any questions or queries about this new legislation.
Santiago Blanes Mompo
Tomarial Labor Area Partner
