Ten direct effects of the new law on remote working in Spain

While the extension of the temporary redundancy plans due to force majeure as a result of COVID-19 is still up in the air (although no one doubts that it will happen), three circumstances have come together to lead the government to fast-track approval of Royal Decree-Law 28/2020, of September 22, which regulates remote working and is the result of a process of social dialog: (1) the need to regulate a matter that was regulated until now by a single, concise and outdated provision (section 13 of the Spanish Workers Statute) to provide greater clarity and legal certainty to this rising way of providing services; (2) the impact of technology and the growing investment in digital resources that make it increasingly unnecessary to work from the employer’s premises; and (3) the emergency situation created by the coronavirus, which has driven companies and workers towards testing more flexible ways of working (the public health emergency generated by COVID-19 and the containment measures enforced by the authorities have tripled the number of employees working remotely in Spain up to 30.2%,according to Eurofund).  

The first warning is that this regulation does not apply to those remote working situations implemented as a preventive measure or   due to containment measures to deal with the pandemic. In those cases, Royal Decree-Law 28/2020 refers to ordinary labor regulations, even if companies are required to provide the means, equipment, tools and materials necessary to work remotely. Although the preferential nature granted to remote working ended on September 21 (section 5 of Royal Decree-Law 8/2020), it is still legally an organizational form to be encouraged by companies whenever possible given the nature of the work (section 7.1(e) of Royal-Decree Law 21/2020, of June 9, on urgent prevention, containment and coordination measures to deal with the health crisis caused by COVID-19).

Down below we highlight ten legal developments of Royal Decree-Law 28/2020 that we believe will have direct impact on companies’ labor relations strategy, taking into account that a period of adaptation is expected for pre-existing remote working relations.

1. The new definition will increase cases of remote working.  The new regulation will apply to all those labor relations with employees that are regularly carried out remotely (i.e., not occasionally or temporarily). Unlike the predominate nature, i.e., over 50% of the working day that it was supposed to currently have, the regulation limits this flexibility by defining regular remote work in a reference period of three months as a minimum of 30% of the working day, or the equivalent proportional percentage, depending on the term of the contract. This is extremely relevant, since other flexible working situations that until now were excluded will now be considered remote working with all its consequences, which could cause the discouragement of companies that were considering to approve remote working or flexibility plans in the future.
   
   
2. Equality of rights will force company policies to be reviewed. Remote workers will enjoy the same rights and working conditions (including salary, work-life balance measures, equality and non-discrimination, training and professional promotion) as staff working at the workplace, except for those inherent to on-site activity (which will not be so easy to prove). It is also worth noting that: (i) the fact that workers may not be dismissed due to incompetence resulting from technical or other difficulties not attributable to the worker; (ii) the company’s obligation to include remote workers in equality plans, anti-harassment protocols and digital disconnection protocols approved; and (iii) the company must notify remote workers and their legal representatives of any vacancies that may arise that require full or part-time presence at the workplace.
   
   
3. Its voluntary nature will prevent remote working from being implemented through a substantial modification of working conditions. The choice to work remotely will be voluntary for both the worker and the company and will require a written agreement to be signed, regardless of the right to work remotely that may be recognized by law or by collective bargaining for specific individuals or groups (i.e., for reasons of work-life balance, training needs or gender-based violence). For training and internship contracts and contracts with minors, the regulation will only allow remote working when at least 50% of the working time can be guaranteed to be at the workplace (which may be amended by collective bargaining except when the contract is with a minor).
   
   
4. Reversibility conditions should be included in the agreement. Another main point is that either party may switch from remote to on-site work or change the percentage of on-site work. Reversal will be subject to the terms established in the collective bargaining agreement or, failing that, in the remote working agreement between the company and the worker.
   
   
5. A company that does not sign the remote working agreement can be fined. The agreement must be drawn up in writing, simultaneously or subsequent to signing the employment contract (but in any case before the remote working beings), and a copy must be given to the workers’ legal representatives and to the employment office; otherwise, it will be considered a serious infringement (section 7 of the Spanish Act on Offenses and Sanctions in Labor Matters (“LISOS”)). The agreement must include: (a) an inventory of the means, equipment and tools required for remote working (including materials and furniture), specifying their useful life or maximum period for renewal; (b) expenses and way of quantifying mandatory reimbursement by the company; (c) schedule and rules of availability; (d) distribution of the time spent working on site v. remotely; (e) remote working location and physical workplace; (f) notice period for exercising reversibility; (g) means of corporate control; (h) protocol to be followed in the event of technical difficulties; (i) data protection and information security; and (j) term or duration of the agreement.
   
   
6. The company must assume the expenses incurred by remote working. Another of the most controversial points is that the company must guarantee the provision and maintenance of all the means, equipment and tools necessary to carry out the activity. Collective bargaining can regulate the mechanism for determining and reimbursing or paying these expenses, as well as the terms on which equipment is provided and maintained. Despite the ambiguity of the regulation, the full reimbursement of the expenses incurred by remote working in its initial version (when it referred to “all direct and indirect expenses”) seems to have mutated into a more flexible reimbursement obligation, depending on what is agreed or negotiated in the applicable collective bargaining agreement.
   
   
7. The schedule may be flexible, but the company must record the working day. It also provides the option of making the schedule more flexible, while respecting mandatory availability times and regulations on working time, including the obligation to record working hours (section 34.9 of the Workers Statute).
   
8. Occupational risk prevention must be adapted to the specific features of remote working. Companies should pay special attention to the psychosocial, ergonomic and organizational factors that are characteristic of this way of working (in particular, the distribution of the working day, availability times, breaks and disconnections during the working day). Risk assessment only covers the area set aside for the provision of services and is not extended the rest of the home or place chosen to work remotely. The visit to the remote workers’ home will require their permission and, if it is not granted, the preventive activity may be carried out based on the risks determined from the information collected from the worker, according to the instructions of the prevention service. 
   
9. The company will be able to monitor the work remotely, but it will still be limited by the rights of the workers, including the protection of their personal data. The company can adopt the measures necessary to verify compliance by the workers with their work obligations and duties, without detriment to their dignity, privacy and right to data protection and digital disconnection under the Spanish Act on Data Protection and Guarantee of Digital Rights (“LOPDGDD”). The company cannot require that applications be installed on devices owned by the worker (the regulation reflects the case-law of the National High Court on this matter).
   
   
10. Collective bargaining agreements will play a very important role in supplementing the regulation in this area. The law expressly allows collective bargaining to regulate certain relevant aspects such as: (i) identifying the jobs that can be carried out remotely, (ii) the conditions for accessing and developing the activity, (iii) its maximum duration, (iv) the mechanism for determining reimbursement for expenses, as well as the terms on which equipment is provided and maintained, and (v) the additional content in the agreement.

With time and a little more perspective, we will see whether this new regulatory framework can provide greater legal certainty and consolidate remote working in Spain or if, on the contrary, the rigidity with which some issues are regulated (such as the 30% percentage, reversibility or reimbursement of expenses) has the opposite effect to fulfill its purpose, which is to contribute to a real cultural change in our country’s organizations.

Autores: Jennifer Bel y Marc Paris