Remote working: a “purely” preferential measure in the current context?

Some weeks after the start of the Spanish government’s Plan for transition to a new normal, of April 28, and considering the gradual resumption of business activity, many companies are planning to resume activity in terms similar to before the COVID-19 crisis. In some cases, companies anticipate workers physically returning to work, including when they have been working from home in the weeks of strict lockdown.

In view of the labor regulations established since the declaration of the state of emergency: is this physical resumption possible, given that the lawmaker has expressly established remote working as a preferential working method?  If it is, how should it resume? This is not a trivial matter. Given the possible liabilities that companies could incur, they must carefully assess the effective return of workers to their workplaces.

Royal Decree-Law 8/2020, of March 17, clearly established remote working as a preferential or priority alternative to temporary redundancy plans (“ERTEs”) during the health crisis. To avoid a (greater) deluge of ERTEs, the government established remote working as a containment measure, on the condition that (i) remote working is technically and reasonably possible and, (ii) the business adaptation effort is proportionate.

As we analyzed in a previous post, Royal Decree-Law 15/2020, of April 21, extended that priority application of remote working and, although the literal wording of the precept has not changed (it continues to use the word “preferential” and not cessation or reduction of activity), considering both the preliminary recitals and particularly the context in which it was published, we believe the lawmaker intended to make remote working a genuine preventive measure to protect workers. This being the case, it is conceivable that it has preferential character over the resumption of the activity accompanied by other reasonable preventive measures. This interpretation is more plausible if we consider orders SND/399/2020, of May 9, and 414/2020, of May 16, which make measures more flexible in phases 1 and 2, respectively, and examine that preferential preventive character more closely, stating that remote working should continue “where possible” and “for workers who can work remotely.”

Does this mean remote working is mandatory? No. In fact, it is possible that workers will have to physically return to work if either of the two conditions established in the regulations is met: because (i) remote working is not technically or reasonably possible (this will be the case with many jobs), or (ii) continuing with remote working entails a disproportionate effort for the company. It is important to consider the following issues:

• The company should be able to claim (and eventually prove) that maintaining remote working is disproportionate, which will be harder in companies with resources for it, and particularly when staff have been working remotely since March 14 with no incidents.

• In any case, we must consider that the physical return to work cannot be as it was previously. The organizational and preventive measures set out in the orders on activity resumption are so significant and demanding that companies must consider them very seriously as an additional element in the careful analysis we mention above.

• Last but not least, that decision on workers physically returning to work must be taken considering the liability to which the company could be exposed if it has not adopted the reasonable prevention measures: administrative sanction (with significant fines in accordance with the case) where it is not necessary for harm (infection or infection with consequences, in this case) to have been caused; additional social security benefits; civil liability for damage (including against directors if they have not acted with due diligence); or, in serious cases, criminal liability.

Ultimately, remote working has been expressly established as a preferential measure; however, given the legal conditions for not maintaining it, the difficulty of physical working in a truly safe system for workers and the consequences of not maintaining it lead us to think that it is perhaps more than a simple legal preference. It is clear that companies must carefully analyze whether they should continue considering returning to their offices or perhaps open up to remote working. Time will tell whether remote working is here to stay, as some suggest.