28 Sep
telework Spanish RD Law 28/2020

Telework: the 10 key points of Spanish RD-Law 28/2020 on remote work

Teleworking: we explain the 10 main keys of RD-Law 28/2020 on remote work, published (September 23) in the BOE (Official state bulletin) and that will come into force on 13 October (except for some provisions).

  1. First thing: who does it apply for?

The RD-Law only applies to work relationships that are developed remotely on a regular basis.

And what is meant by regular character?

That which is provided in a reference period of three months, a minimum of 30% of the day, or the equivalent proportional percentage depending on the duration of the employment contract.

Our opinion: although it is premature, we think that in the end there will be few companies and workers to whom the RD-Law is finally applied.

The reason is that (regardless of the situation generated by Covid-19) in few companies there are employees who telework (at least so far) more than 30%.

Important: However, it is established in the RD-Law that through collective bargaining a percentage of the working day of less than 30% may be set.

  1. When does the RD-Law come into force

It enters into force within 20 days: 13 October (except for some specific provisions that have entered into force on September 23).

  1. Remote work during Covid-19: it is excluded

As established in the third transitory provision of the RD-Law, remote work during the Covid-19 has been excluded from the RD-Law.

This means that this remote work implemented exceptionally due to the situation caused by Covid-19, and as long as this situation continues, the ordinary labor regulations will continue to apply.

However, it is expressly established that companies will be obliged to provide the means, equipment, tools and consumables required for the development of remote work, as well as any necessary maintenance.

Where appropriate, collective bargaining will establish the form of compensation for the expenses derived from this form of exceptional distance work due to Covid-19, if they exist and have not already been compensated.

However, it is expressly established that companies will be obliged to provide the means, equipment, tools and consumables required for the development of remote work, as well as any necessary maintenance.

Where appropriate, collective bargaining will establish the form of compensation for the expenses derived from this form of exceptional distance work due to Covid-19, if they exist and have not already been compensated.

 

  1. Remote work that already existed before

The first transitory provision regulates the remote work situations existing at the entry into force of the RD-Law (apart from those contemplated in the previous point, exceptional by Covid-19)

In this sense, the following is established:

This RD-Law will be fully applicable to current employment relationships that were regulated, prior to its publication, by collective agreements or agreements on conditions of provision of remote services, from the moment they lose their validity. In the event that the conventions or agreements do not provide for a duration, this rule will be fully applicable after one year has elapsed since its publication in the BOE (today, September 23).

However, a longer term can be agreed between the parties (maximum three years)

The application of the RD-Law may not entail the compensation, absorption or disappearance of any rights or more beneficial conditions that the workers have been enjoying.

The distance work agreement must be formalized within three months from when the RD-Law becomes applicable to the specific employment relationship.

In the same period, adaptations or modifications of individual distance work agreements not derived from collective agreements or agreements must be made.

  1. Collective bargaining will be key

Collective agreements or agreements may establish, in response to the specificity of the specific activity within their scope:

  • the identification of the jobs and functions that can be carried out through remote work
  • the conditions of access and development of work activity through this modality
  •  the maximum duration of remote work
  • Other additional content in the distance work agreement and any other issues deemed necessary to regulate.

Collective agreements or agreements may regulate a minimum face-to-face working day at tele working.

They may also set the exercise of reversibility to work on the premises of the company, a percentage or reference period lower than those set in this RD-Law, the effects of qualifying as “regular” this mode of execution of the work activity.

They may also set a percentage of face-to-face work in training contracts different from that provided for in the RD-Law, provided that they are not celebrated with minors.

Likewise, they may define possible extraordinary circumstances of modulation of the right to disconnect.

6 Control of remote work by the company

The company may adopt the measures it deems most appropriate for surveillance and control to verify compliance by the worker with their obligations and work duties. Of course, when it comes to exercising control, companies must respect the right to dignity and take into account, where appropriate, the real capacity of workers with disabilities

 

  1. Right to digital disconnection

In reality, the RD-Law is practically limited to “tracing” what is already established in art. 88 of the LOPDGDD (right to digital disconnection of workers).

In fact, the RD-Law itself expressly refers to this article.

It is established (among other points) that people who work remotely, particularly teleworking, have right to digital disconnection outside of their working hours in the terms established in article 88 of Organic Law 3/2018, of December 5.

The corporate duty to guarantee disconnection entails a limitation of the use of technological means of business and work communication during rest periods.

Likewise, it entails respect for the maximum duration of the working day and any limits and precautions regarding working hours provided by the applicable legal or conventional regulations.

  1. Time record

It was not really necessary to establish that in the case of remote work, the work day must be recorded daily, since the obligation to record the work day was already mandatory (with or without teleworking).

In any case, in art. 14 of the RD-Law establishes that the time registration system must faithfully reflect the time that the worker who performs remote work dedicates to the work activity, without prejudice to the flexible hours.

The time record must include, among others, the time of start and end of the day.

  1. Prevention of occupational risks

The risk assessment and the planning of the preventive activity of remote work must take into account the characteristic risks of this type of work, In particular, emphasis should be placed on psychosocial, ergonomic and organizational factors.

In particular, the distribution of the day, the times of availability and the guarantee of breaks and disconnections during the day must be taken into account.

  1. Compensation of expenses

The development of remote work must be paid for or compensated by the company.

It may not suppose the assumption by the worker of expenses related to the equipment, tools and means linked to the development of their work activity.

The collective agreements or agreements may establish the mechanism for the determination, compensation or payment of these expenses.

 

Remember that if your company needs advice on labor, tax & accounting matters, do not hesitate to contact our Team of Experts to request a quote.

 

By: Estela Martín

Linkedin TopVoices España 2020. DirCom & RSC en ...

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