Decree law 94-A/2020 of the 3rd November introduces significant changes to Decree-Law 79-A/ 2020 of the 1st October, above all in areas related to teleworking. The employment law team of Abreu Advogados has prepared a list of eight questions and answers about the exceptional regime that seek to respond to the principal doubts of businesses and workers.
1 – For whom is the adoption of the teleworking regime obligatory?
For businesses with establishments in the areas in which the epidemiological situation justifies it (councils that fulfil the ongoing requisites of the Resolution of the Council of Ministers 92-A/2020, of the 2nd November), independent of the number of workers, as well as the number of workers that reside in or work in these same areas.
2 – In which situations is the teleworking regime obligatory?
The teleworking regime is obligatory, independent of the nature of the employment contract, wherever the roles in question allow for it and the worker has the means to exercise it, without any written agreement between the employer and the worker being necessary.
The teleworking regime is also obligatory for business that use or benefit from the services provided, with regard to temporary workers and service providers that are providing services to these entities.
3 – Can the employer decide that the activity won’t be provided on a teleworking basis?
Exceptionally and when it is understood that the roles are not compatible with the teleworking regime or if technical conditions for its implementation don’t exist, the employer may communicate to the worker their decision to not adopt the regime of teleworking, in writing and on a substantiated basis.
If the worker doesn’t agree with the employer’s decision they may, in the three following business days, request that the Authority for Employment Conditions (ACT) verify (i) if all the requisites for the adoption of the regime of teleworking are met and (ii) the facts asserted by the employer. The ACT has five working days to decide, having to take into consideration in their decision the activity for which the worker was contracted and the prior exercise of the activity on a regime of teleworking or via other means of distance working.
4 – What is the consequence of failure to comply with a decision of the ACT determining that the regime of teleworking should be adopted?
The failure to comply by part of the employer with the decision of the ACT constitutes a serious infraction and may imply the payment of a fine between € 612,00 (six hundred and twelve euros) and € 9.690,00 (nine thousand six hundred and ninety euros), with the value of the fine varying with regard to the volume of business and the level of guilt of the business.
5 – Who is responsible for making work and communication equipment for the provision of activity on a teleworking basis available?
The employer must make the work and communication equipment available for the provision of activity on a teleworking basis.
Despite the fact the Decree-Law does not make any reference to other expenditure that the worker has to absorb in order to carry out their role on this basis, we understand that taking into account the general regime covered by the Labour Code, that such expenditure should be covered by the employer, as long as the worker proves that the equipment is needed, demonstrating the correlation between the equipment and the provision of the activity on a teleworking basis.
If it is not possible for the employer to make work and communication equipment available and if the worker agrees, the activity can be carried out using equipment that the worker already has, with it falling upon the employer to programme and adapt the equipment to the needs of the provision of teleworking.
6 – Can the worker communicate to the business any impediment to their provision of activity on a teleworking basis?
If the worker understands that they do not have the conditions in order to exercise their role on a teleworking basis, whether these be technical conditions or lack of adequate housing, they must inform the employer of this, indicating the reasons for the impediment.
7 – What are the rights of the worker that carries out their role on a teleworking basis?
The worker who is part of the teleworking regime maintains the same rights and obligations as any other worker, without any reduction to their compensation in the terms covered by the Labour Code or in any instrument of collective regulation of work, namely in what refers to limits to the normal period of work and reparations for injury resulting from accidents at work or work-related sickness. Moreover, those working as part of this regime maintain the right to receive food allowance.
8 – Are there some workers for whom the adoption of the teleworking regime is not obligatory?
The regime of obligatory teleworking is not applicable to professionals in the area of health, security and emergency services, including volunteer firefighters and the armed forces, key workers and those in social facilities providing support to the elderly such as residential homes, day centres and similar, those in management and maintenance of essential infrastructure, nor does it apply to workers in pre-school in the social sector that form part of the national network of pre-school education regulated by Decree-Law number 147/97 of the 11th June, nor does it apply to those working in educational and training establishments, whether teaching or non-teaching, at the primary and secondary level, administered in the private and cooperative sector outside of the higher sector, including private vocational schools.