Five keys to the Royal Decree Law 28/2020, of September 22 on remote work

The Spanish Official Gazette recently published the Royal Decree-Law 28/2020, of September 22, on remote working (hereinafter, “RD 28/2020”) which aims to establish a single regulation applicable to all forms of remote work. Find below our summary of the key elements of this new piece of legislation:

1.What is the meaning of remote work under the new Spanish regulations?

• Firstly, it is necessary to emphasize that the rule will only apply to employees who provide services under an employment contract, provided that remote work represents at least 30% of their working time using three months as a reference period. In order to determine the percentage of the working time in question, the length of services in the company during the year will be considered for this purpose.

• On the other hand, it should be noted that the RD 28/2020 distinguishes between two types of remote working: “work from home” and “telework”. Specifically, work from home is considered to be that carried out at the employees’ domicile or at a location chosen by the employees; telework is, on the other hand, carried out using computer or telematics systems or telecommunications outside of the relevant work centre of the employer.

2.Is there a right to remote work?

• Remote working is, in general terms, voluntary and reversible. Therefore, employers are not entitled to impose it, and the employees cannot impose it without the company’s approval, except in cases where remote work is exercised as a right to reconcile family life in the terms provided in Article 34 of the Spanish Workers’ Statute.

• It should be noted that in cases different from those concerning family-work reconciliation rights, the right to remote work will not exist until a written remote working agreement is signed, in any event, the agreement should be entered into prior to the start of the provision of remote services.

• In accordance with the minimum legal requirements of the remote working agreement, the main issues to be addressed are: flexible working time, on-site working hours, a system for the payment of expenses by the company, the duration of the agreement and the conditions of reversibility. To this effect, it is necessary to mention that collective bargaining agreements will have a fundamental role in the regulation of these matters, attending to the terms set out by RD 28/2020.

• It is also important to emphasize that the use of applications on personal devices or the use of such devices as work tools cannot not be imposed by the employer. Therefore, this is an issue to be specifically addressed in the relevant remote work agreements.

• On the other hand, the new regulation establishes the right to the prevention of occupational hazards, in specific, the evaluation and planning of the prevention of occupational hazards activity shall be carried out.

• The daily working hours registry obligations must be respected during remote work and must reflect the daily working hours of each employee, including the start and finish of the daily working hours. Even if a regime of flexibility or availability of working hours is established.

• RD 28/2020 grants the same rights to employees who work on-site and to those who work remotely. Particularly regarding equal employment conditions, opportunities for promotion and training, and collective representation, in this regard, the company must allow the use of telematics means and virtual notice boards to the employees’ representatives.

• Likewise, employees who provide services remotely have the right to be informed by their employer about professional opportunities to provide on-site services.

3.Should remote work policies be established?

• RD 28/2020 refers on different occasions to instructions or company policies, particularly when it refers to the employees’ obligations regarding the protection of personal data and security breaches; and their right to digital disconnection. However, it does not set out any specific form.

• Although collective bargaining agreements may introduce specific provisions, these issues can be regulated by the company, involving the employee representatives, if any.

• Regarding employer monitoring, RD 28/2020 allows the use of digital means to monitor the employees’ services. Nevertheless, the implementation of these measures must be analysed on a case-by-case basis, considering the applicable regulations on data protection and the right to
  intimacy.

• Considering the diverse nature of the matters addressed above, some of them, only connected through remote work; in many cases it may be advisable to implement a remote work policy regulating all the matters mentioned in this section.

4.What happens if an employee asks to switch to the telework mode and the company refuses?

• One of the new provisions of RD 38/2020 is that it sets out of a specific type of procedure by modifying Law 36/2011, of October 10, regulating the social jurisdiction; this procedure is applicable to disputes arising from remote work in the event that the employer rejects an employee’s request or tries to implement modifications on the remote work conditions. The statute of limitations is of 20 days as of the decision of the employer.

5.What happens with the remote work agreements that are already in force?

• Employers have a 3 months period to adapt agreements that are prior to RD 28/2020. In this regard, it is worth mentioning that the regulation forbids the application of mechanisms to absorb and offset existing working conditions; therefore, will be highly important to analyse the current working conditions before proposing the modification.

Finally, it should be noted that the companies that implemented work from home and telework measures due to the state of alarm caused by COVID-19, still applicable at the moment, do not fall under the scope of this new remote work regulation and may continue to apply ordinary employment regulations. Nevertheless, they will have to provide the necessary means to the employees and maintain the equipment, paying the relevant expenses.