Remote Work Law

What does this new bill say about remote work and how does it differ from working at home or telecommuting?

The purpose of said law is to create a new form of execution of the employment contract, called "remote work", which will be agreed upon voluntarily by the parties and may be developed through existing and new technologies, or other means and mechanisms that allow the contracted work to be performed remotely. This new form of execution of the employment contract will be performed remotely in its entirety and will imply an employment relationship with the recognition of the rights and guarantees derived from an employment contract.

Regarding the scope of application, it is established that it will be applicable to any natural person domiciled in the national territory, as well as to national public and private entities, and to foreign companies that hire workers within the national territory.

That said, the Law defines remote work as a form of execution of the employment contract in which the entire employment relationship, from its beginning to its termination, must be performed remotely through the use of information and telecommunication technologies or other means or mechanism, where the employer and the employee do not physically interact throughout the contractual relationship. In any case, this form of execution does not share the constituent and regulated elements for telework and / or work at home and the rules that modify it.

General Principles of Remote Work.

a. Remote work shall require, for all purposes, the concurrence of the essential elements mentioned in Article 23 of the Substantive Labor Code.

b. They shall have the same labor rights enjoyed by all workers, including union and social security guarantees.

c. This new form of execution of the remote labor contract does not require a specific physical place for the rendering of services. The worker may render his services from the place he considers appropriate, by mutual agreement with the employer, with the prior approval of the Labor Risks Administrator present in the contract. However, at all times he/she must have an internet connection and coverage and inform the employer about the place from which he/she will perform his/her work and the employer must approve the place chosen to ensure compliance with the minimum safety and health requirements at work, taking into account the recommendations of the Labor Risks Administrator, promoting self-care as a preventive measure.

d. The remote work has as a principle the flexibility in all pre-contractual and contractual stages, so that even the perfection of the employment contract must be done remotely, making use of existing and new technologies or other means or mechanism, completing its perfection with the electronic or digital signature.

e. The remote worker and the employer shall agree on the time of execution, without prejudice to the formalities of the fixed-term contract, and the time of rendering the service, without exceeding the maximum legal working day, and without this implying a disregard of their minimum rights and/or unwaivable guarantees, except in the case of a position of direction, trust and management.

f. The rules on union guarantees and rights provided for in the labor legislation in force shall apply to remote work.

g. There is no labor exclusivity in this new form of execution of the labor contract.

h. All stages of the employment contract shall be performed remotely, using new or existing technologies, without requiring the physical presence of the parties involved, except in cases where, for occupational health reasons, presence is required.

i. Labor agreements executed remotely shall require the electronic or digital signature of the parties for their perfection, in order to certify the identity of the parties and/or eventual changes in the digital document.

j. Remote work shall be executed and may be terminated remotely, through the use of new technologies or other means or mechanism.

k. The employer shall assume the maintenance of equipment, tools, programs and other elements necessary for the provision and development of the work of the remote worker.

In accordance with Article 39 of the Substantive Labor Code, the following must be stated in the remote work:

a. The conditions of service, the technological and environmental means required and the manner of executing the same in conditions of time and space.

b. Determine the functions, days and schedules in which the remote worker will perform his activities for the purpose of helping to identify the origin in case of work accident and to avoid the ignorance of the maximum legal working day when he is subject to it.

c. Define the responsibilities regarding the custody of the work elements and establish the procedure for the delivery of the work elements by the employer to the remote worker.

The computer security measures that the remote worker must know and comply with.

The workers who, by mutual agreement with the employer, perform their contract remotely, shall be entitled to the recognition and payment of overtime to their ordinary or contractual working hours, as well as to the work performed on Sundays and holidays.

The employer, exceptionally, may require the remote worker in its work facilities, for the following cases:

Verification of the standards and requirements to be met by the tools and work equipment for the performance of the work previously foreseen by the employer.

When for the execution of the remote worker's work, some type of software, program, application or platform must be manually installed or updated in the work equipment.

When the worker repeatedly presents the non-compliance of his/her work and is eventually summoned for the process of labor discharges, as well as other summons that are required by the employer to advance the sanctioning or disciplinary process for the application of what is contemplated in articles 111 and 112 of the Substantive Labor Code.

The remote worker shall not be beneficiary of the transportation allowance determined by law. In the event that the employer requires the remote worker to be present at its facilities, provided that the remote worker complies with the legal requirements to do so, it must recognize, in the cases in which it is applicable in accordance with the regulations in force and in a proportional manner, the legal transportation allowance provided for in the labor legislation in force.

The employer and remote worker must adhere to the agreed working day, with the intention of avoiding hyperconnection, which can generate impacts on the health and emotional balance of remote workers.

The employer will have the obligation to affiliate the remote worker to the General System of Labor Risks.

As from the entry into force of the law, any worker will be able to take advantage of this new form of execution of the remote work contract provided for in this law, provided that there is a concurrence of wills between the worker and the employer, without detriment to the acquired labor rights.

Additionally, persons who work remotely and who prove that they are solely responsible for the care of persons under fourteen (14) years of age, persons with disabilities or elderly persons in the first degree of consanguinity who live with the remote worker and who require specific assistance, shall be entitled to schedules compatible with the care tasks in their charge and/or to interrupt the working day, with a prior authorization to the employer that allows the interruption, without the deterioration of their working conditions.

Finally, with regard to the regulation of work at home, the main difference is that this is only given as a form of service provision in occasional, exceptional or special situations, and therefore, in principle, it is valid for a term of up to three months, which may be extended for an equal term only once. However, in conditions such as those derived from the pandemic, which circumstances have extended for more than one year, it will extend the authorization to work at home until the conditions that motivated it disappear.

Likewise, work at home is not limited to work that can be performed by means of information and communication technologies, computer or similar means, but extends to any type of work or labor that does not require the physical presence of the worker or employee in the facilities of the company or entity.

Now, with regard to the modality of "telework", the main aspect that differentiates it from "remote work" is the obligation, in the case of remote work, to perform, even up to the subscription and termination of the contract by this means, however, there are still several questions in practice about the real difference between these two figures.