With the governmental decree 3-A/21, of the 14th January the Employment team at Abreu Advogados explains to whom the new regime of teleworking applies, if it’s necessary to have agreement between the employer and the worker, who is excluded and what to do if the teleworking regime is not possible, among other questions.
1.To whom does it apply?
Teleworking must be adopted wherever it is compatible with the business undertaken and the employee has the conditions to exercise it, independent of their contractual situation, of the mode or nature of the legal relationship.
2. Is an agreement between employer and employee necessary?
No, teleworking is imposed without any need of agreement between the employer and the employee, provided that the conditions indicated in the previous question are fulfilled.
3. Who is excluded?
Teleworking is not obligatory for keyworkers, i.e., for health professionals, security and emergency services, including volunteer firefighters, armed forces, workers in essential public services and in care homes for the elderly, day centres and similar, and in the management and maintenance of essential infrastructure.
4. What should the employer do if teleworking cannot be adopted
- Organise workplace start and end times on a staggered basis;
- Create stable working teams;
- Alternate breaks, including for meals;
- May change working hours so that the aforementioned measures can be met; and
- Ensure the use of adequate personal protective equipment (masks and face shields) where physical distancing is impracticable as a result of the nature of work.
5. What are the rights of the teleworker?
The teleworker has the same rights and responsibilities as any other worker, without reduction of pay in the terms covered in the Labour Code or in the applicable collective regulations, specifically in relation to limits to the normal period of work and other conditions of work, safety, workplace health and compensation for damages resulting from workplace accidents or occupational sickness, maintaining the right to receive any meal allowances owed.
6. Provision of work-related tools?
The employer must provide work-related tools and those of communication necessary in order for teleworking to be undertaken.
Only in cases where this is not possible, and the worker agrees, may teleworking take place using means that the teleworker already has, with it falling upon the employer to ensure that they are programmed and adapted to the needs of the teleworking tasks.
7. What is the consequence of the failure to comply with the implementation of teleworking?
The failure to comply with the obligation of teleworking during the state of emergency, irrespective of the contractual relationship, the mode or nature of the legal relationship, wherever the roles in question permit it, constitutes a very serious offence, with fines that can vary between 2,040 Euros and 61,200 Euros, depending on the degree of guilt of the employer and their volume of business.
8. What is the term of this new regime?
This regime comes into effect at 00:00 h on 15th January 2021 until 23h59 on 30th January 2021, without prejudice to further renewals.