20-07-2021

Summary of Royal Decree-Law 28/2020, of September 22, on Distance Work

After a long process of negotiation between the Government and the social agents, the Royal Decree-Law (RDL) 28/2020, of September 22, which regulates the long-awaited Distance Work Law, has finally been published in the BOE today. (hereinafter LTD.) The aforementioned rule, as an exception – which is to be appreciated – to the RDLs issued by the Government in recent months, comes into effect 20 days after its publication .

We have already anticipated that there are many aspects that remain extremely open since it is intended to give a preponderant role to collective bargaining to regulate and specify many aspects.

It is already relevant to indicate that, once this rule has been published, and after the three-month extension from the end of the state of alarm, since last September 21 the preferential nature of distance work that in its day established in article 5 has disappeared of RDL 8/2020, of March 17 .

Without further ado, as always, urgently and synthetically, we proceed to develop the main novelties included in Royal Decree-Law 28/2020 of the Distance Work Law following the order of its different chapters:

1. Chapter I.- General provisions and definitions

It is established that the LTD will be applicable to those employment relationships (included within 1.1 of the Workers’ Statute -ET-) that are developed remotely on a regular basis , that is, in a non-occasional way . As we have already pointed out, the regularity in the use of remote work, and not its intensity, is the feature that characterizes the scope of this regulation. Thus, he points out, it is understood as regular when, in a reference period of 3 months , a minimum of 30% of the working day (or equivalent proportional percentage depending on the duration of the contract) is provided under this modality. In other words, remote service of more than one and a half days a week. If this benefit is lower, this regulation does not apply. (1)

The LTD establishes three definitions of as many concepts, let’s call them basic:

– Remote work : way of organizing work or carrying out the work activity that 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 work at a distance that is carried out through the exclusive or prevalent use of computer, telematic and telecommunication means and systems.
– Face-to-face work : it is provided in the workplace or in the place determined by the company.

It also establishes that there should be no unjustified differences ( equal treatment and non-discrimination ) between the teleworkers themselves, an express reference to the need to establish the appropriate prevention measures against harassment, or the obligation to ensure that people who carry out remote work can access and exercise conciliation / co-responsibility rights in the same way as face-to-face workers. Likewise, it is indicated that people who carry out occasional remote work will have the same rights established for people who carry out non-occasional work.

In the same way, express limitations are established in distance work for contracts concluded with minors and in internship relationships and for training and learning . In these cases, it must be guaranteed that a minimum of 50% of the provision of services is in person, without prejudice to the telematic development of the theoretical training – where appropriate for the latter.

2. Chapter II.- The so-called distance work agreement

It is established that distance work will be voluntary – without it being imposed, not even, via art. 41ET— and will require the signature of the so-called “ distance work agreement ( ATD)”. In this regard, take into account the general exception that is included in the third transitory provision of this RDL that we comment on and that we point out in point 5 of this Circular. It is very relevant to take into account what is stated in said provision, since in many cases the remote provision has been imposed or forced by the current pandemic situation in which we live.

The refusal of the worker to develop this type of service provision; making use of the reversibility to face-to-face work; and the difficulties for the adequate development of the service that are exclusively related to the change from a face-to-face service to another that includes remote work, will not be justifying causes for the termination of the employment relationship or for the substantial modification of working conditions.

Yes, the aforementioned reversibility exercise is possible , which is nothing more than the possibility of varying the decision to go from face-to-face work to remote work and vice versa. This exercise will be possible for both the worker and the Company, although in the terms, form and manner established in collective bargaining or, failing that, in those established in the ATD.

Returning to the ATD, which must be done in writing and before starting the remote work, it is the document that must contain the essential elements to guarantee the rights of remote workers. Its minimum mandatory content – without prejudice to the regulation in this regard in collective agreements or agreements – is as follows:

a) Inventory of means, equipment and tools —including consumables and furniture elements—, as well as their useful life or maximum period for their renewal;
b) Enumeration of expenses, form of quantification and time and form of payment —this will correspond, if any, with the provision included in the collective agreement or agreement—;
c) Working hours and availability rules;
d) Percentage and distribution between presence work and remote work – if applicable -;
e) Work center of the company where the worker is assigned;
f) Remote workplace chosen by the worker (2) ;
g) Duration of notice periods for the reversibility exercise;
h) Means of business control of the activity;
i) Procedure to follow in case of technical difficulties that prevent the normal development of remote work;
j) Instructions issued by the Company, with the participation of the RLT, for data protection
k) Information security instructions, specifically applicable to remote work
l) Duration of the agreement or the provision of remote services.

Any change in the conditions of provision of services reflected in the ATD will require an agreement between the Company and the worker and, like the ATD, must be reflected in writing prior to its implementation.

To guarantee the above, the company will be obliged to deliver a copy to the RLT – both of the ATDs and their updates (modifications) -, within a period not exceeding 10 days from their formalization, excluding those data that could affect privacy personnel in accordance with the LOPD and 8.4 of the ET. For their part, the RLTs must sign such a copy in order to prove that the delivery has taken place. Said copies shall be registered with the Employment Office.

Although, as we have indicated, distance work is a formula freely chosen by both parties —voluntariness—, the LTD establishes a preference for access to face-to-face work — total or partial — of those people who carry out telework during the entirety of their working day. To this end, the Company will inform these workers and the RLT of the job vacancies that may occur in person. (3)

3. Chapter III.- Rights of remote workers

✓ Rights related to the professional career. On the one hand, the effective participation , in training actions, of people who work remotely, in terms equivalent to those who provide services in person, must be guaranteed and, likewise, it must be guaranteed, prior access to the remote work modality , the necessary training for its proper development, both at the time of formalizing the ATD and when there are changes in the means or technologies used —particularly in teleworking—. On the other hand, it must be guaranteed that people who work remotely have the same rights to professional promotion as those who provide face-to-face services, so the Company will be obliged to inform them, expressly and in writing, of the possibilities of promotion that occur —whether for face-to-face or remote development positions.

✓ Rights of economic content: The right of people who work remotely to the provision and adequate maintenance by the company, of all equipment , tools and means linked to the development of their work activity, in accordance with the inventory established in the ATD and – where appropriate – with the terms established in the collective agreement or agreement. The necessary attention will also be guaranteed in the case of technical difficulties – particularly for teleworking.

Thus, the development of remote work must be paid for / compensated by the company, and may not involve the assumption by the worker of expenses related to equipment, tools and means related to the development of their work activity, although, Through a collective agreement between the company and the RLT, the mechanism for the determination and compensation or payment of expenses may be established. (4)

✓ Rights related to working time : The schedule that must be included in the ATD is a point of reference, but it can be altered by the worker within the limits set in the agreement itself. In this way, the presumption is favorable to flexible hours for the benefit of the teleworker, being in principle a feature inherent to teleworking. In order to guarantee these rights, it is established that the obligation to register hours must faithfully reflect the working day, without prejudice to the flexibility of the hours and must include, among others, the starting and ending time of the working day.

✓ Rights related to the prevention of occupational risks : According to the LPRL , people who work remotely have the right to adequate protection in terms of safety and health at work. For this, a risk assessment and preventive activity planning must be carried out , paying special attention to psychosocial, ergonomic and organizational factors. This risk assessment will only cover the area enabled for the provision of services, without extending to the rest of the areas of the home.

When, in order to obtain information about the risks, a visit to the place of provision of remote activities is necessary – the permission of the worker will be required (5) – , a written report must be issued justifying said point, which It will be delivered to the worker and the prevention delegates.

✓ Rights related to the use of digital media : The teleworker’s right to privacy is expressly guaranteed and establishes that the control mechanisms that may exist must be suitable, necessary and proportionate. Likewise, companies must establish – with the participation of the RLT – criteria for the use of digital devices respecting the minimum standards for the protection of their privacy in accordance with social uses and recognized rights. (6)

The right to digital disconnection outside working hours is also recognized , which entails an obligation for the company to guarantee a limitation of the use of technological means of business communication and work during rest periods. For this, the company – after hearing the RLT – will draw up an internal policy defining the modalities for exercising the right to disconnect and the training and awareness-raising actions for staff on the reasonable use of technological tools to avoid the risk of computer fatigue . Also through collective bargaining or agreement, the appropriate means will be established to guarantee the indicated right to disconnection and rest times.

✓ Collective rights: this right is recognized for remote workers with the same content and scope as for the rest of the workers – face-to-face -, which will be guaranteed through conditions agreed upon by collective bargaining. In the same way, unimpeded communication must be ensured between teleworkers and their representatives – and other workers. In short, the principle of equality is established for the exercise of collective rights and, for this purpose, rights related to communication are established and specified, through the implementation of mechanisms such as the virtual bulletin board.

4. Chapter IV.- Company rights

The powers of organization, management and business control for distance work are established.

Teleworkers must:

– Comply with the instructions on data protection established by the Company – prior participation of the RLT.
– Comply with the information security instructions set by the company – prior information to the RLT.
– Comply with the conditions and instructions for the use and conservation of computer equipment established in the company, within the agreed terms, where appropriate, by collective bargaining.

For its part, the Company may adopt the measures it deems appropriate for surveillance and control, including the use of telematic means, keeping due consideration to their dignity and taking into account the real capacity of workers with disabilities.

5. Additional, transitory and final provisions. Extension of the Mecuida Plan

In addition to the chapters of the standard that we have been commenting on, it contains a total of 7 additional provisions, 4 transitory provisions and 14 final provisions. We proceed to highlight the most relevant ones related to the object of this norm and labor regulation since, as has become customary, this RDL is used to introduce such diverse issues, through these provisions, such as the tax regime applicable to the female final of the UEFA Champions League 2020, the tax rate applicable to VAT on goods necessary to combat COVID-19, changes in regulations of the railway sector. It is even about perfecting and reordering the requirements for the processing and request of the so-called minimum vital income given the problems that have arisen since this new benefit was approved:

As is already reflected in the regulatory body and we highlighted at the beginning, collective bargaining ( collective agreement or agreements) has a very relevant role in LTD. And so it is accentuated in the first additional provision, where it grants the possibility of establishing the identification of the jobs and functions that can be carried out through remote work, the conditions of access to it, the development of the activity, a maximum duration, additional content in the ATD and other matters deemed necessary to regulate; It may also develop a minimum face-to-face working day, the exercise of reversibility, a percentage or reference period lower than those established in this Law as regular (7) , a percentage of face-to-face work in training contracts that is different from that foreseen (50%) (8) , as well as extraordinary circumstances of modulation of the right to disconnect.

On the other hand, in the third additional provision, article 6 of RDL 8/2020 of March 17 is extended , which regulates the MECUIDA Plan, which will remain in force until January 31, 2021.

On the other hand, transitory rules are established (first and third transitory provisions) applicable to those remote work relationships that are already in force. Specifically:

1. First transitory provision : The LTD will be fully applicable to current employment relationships that were regulated prior to its publication (September 23, 2020), by collective agreements and / or agreements, from the moment they lose its validity;

In the event that these agreements and / or agreements do not provide for a duration period → the LTD will be applicable after 1 year has elapsed from its publication in the BOE;

Exception : Unless the signing parties expressly agree to a longer term, which may be a maximum of 3 years.

2. The ATD must be formalized within a period of 3 months from when the rule becomes applicable, in accordance with the previous rules. And this even through the necessary adaptations or modifications in the individual DTAs in force on the date of publication of this standard.
3. Third transitory provision: VERY IMPORTANT: when remote work has been implemented exceptionally in application of article 5 of RDL 8/2020 —preferential nature of remote work during the pandemic—, or as a consequence of health containment measures, and as long as these are maintained – a term that remains very open and undetermined – the ordinary labor regulations will continue to apply. Even so, companies must provide the means, equipment, tools and consumables that remote work requires, as well as the necessary maintenance. On the other hand, through collective bargaining, the form of compensation of the derived expenses for the remote worker will be established.

In other words, the LTD will not apply, and therefore ATD should not be formalized with those workers who provide non-contact activities, if this remote work, previously non-existent in the company, has been forced by the current situation of the pandemic and as long as it continues, but, even so, the company will have to provide the means, equipment, tools and consumables required by such a way of working but, in principle, and unless expressly agreed in collective bargaining, it is not applicable the payment of compensation of expenses of any kind.

We must understand that the intention of the legislator is that those companies that have been forced to telework do not come forced to assume more expenses at times like the current ones, but they do undertake to provide their employees with the tools necessary to telework.

4. Finally, it is recalled that the application of this LTD cannot be used to diminish the recognized rights of those who already “teleworked” before its publication .

Finally, through the final provisions (first, second and third) articles 13 , 23 and 37 of the ET are modified ; the article 138a of LRJS and Article 7.1 of SMOOTH. Specifically, it should be noted:

– A right of workers considered victims of gender violence or terrorism is established to carry out their work – totally or partially – remotely or to stop doing it if this is the established system, provided that these modalities are compatible with the position and functions performed (37.8) There is also a preferential right of access to remote work (in favor of people when they regularly study to obtain an academic or professional title, modifying article 23.1.a) of the Workers’ Statute .
– A special and specific judicial procedure is established (138 bis LRJS ) applicable to claims related to access, reversion and modifications of remote work – although if the cause of the claim is related to the exercise of conciliation rights, it will be governed by the procedure of article 139 LRJS -.
– It is specified that it will be considered a Serious Infringement in terms of labor relations, the « not formalizing the employment contract in writing, when this requirement is enforceable or has been requested by the worker, or not formalizing the distance work agreement in the terms and with the legally established requirements. ” (article 7.1 SMOOTH).