The Spanish Council of Ministers has approved the Royal Decree-Law 28/2020 of September 23rd, 2020, which is aimed at regulating remote working, after weeks of negotiations between the Government, trade unions and union of employers
On September 21st, 2020, the Government and the social agents reached a preliminary agreement on the regulation of remote working, which was approved in the Council of Ministers the following day through Royal Decree Law 28/2020, of September 23, 2020 (hereinafter, "RDL 28/2020").
Scope of application
It applies to those employees who work remotely on a regular basis (i.e. when it is carried out in a minimum of 30% of the working day (or the equivalent proportional percentage depending on the duration of the contract) in a reference period of three months.
Remote working agreement
Remote working is voluntary for both the employee and the employer. The parties must enter into an agreement that must be included in the initial employment contract (new hires) or as an addendum to the existing employment contract, before it starts.
1) Minimum content:
- Inventory of the means of production provided to render services, with a specific indication of its lifespan or the time that must be passed in order to obtain a new one.
- List of all expenses linked to the service performance and method to calculate the compensation that will be paid by the Company, with express indication of the time and way in which it will be paid.
- Working time and regulations with regard to flexible hours.
- Percentage and distribution between working in the work center and remote working.
- Work center and specific location from which on-site services would be rendered.
- Specific location from which remote services would be rendered.
- Length of the notice period that should be provided to go back to render services in the Company's premises.
- List of control systems applied by the employer to monitor the activity of the employee.
- Details of the procedure to be followed in the event of technical difficulties that prevent remote working.
- Instructions regarding Data Protection and Information Safety policies applicable to remote working.
- Length or duration of the remote working agreement.
This is without prejudice to any additional requirements that may be established by the applicable Collective Bargaining Agreement (CBA).
2) An agreement must be reached between the employer and the employee to modify the terms of the remote working agreement.
3) The employer must provide the Worker's Representatives (hereinafter, "WR") a copy of all remote working agreements within 10 days from their formalization.
Afterwards, this copy must be sent to the Employment Administration (even if there is no WR in the Company).
4) The non-compliance of the formalization of the remote working agreement is classified as a serious infringement, with penalties ranging from 626 euros and 6,250 euros.
Equipment tools and means
The employer must provide all the means, equipment and tools necessary to render services, as well as guarantee the adequate maintenance thereof.
Payment and compensation of expenses
The employer must cover all expenses linked to the render of remote services. In this sense, the employee may not assume the expenses related to the equipment, tools and means linked to the render of remote services.
The applicable CBA will determine the mechanism for compensation and payment of expenses.
Flexible working hours and record of the working time
The employee is entitled to flexible working hours in accordance with the terms established in the remote working agreement and applicable CBA.
In addition, the company's working time registration system must reflect the real time of the remote work, including the starting and ending of the working time, without prejudice to the flexible working hours.
Right to digital switch-off
Remote employees have the right to digital switch-off outside working hours. Therefore, the company must limit the use of business communications and work assignments during resting periods, as well as respect the maximum length of the working time.
The employer may monitor the activity of the employee to verify the level of compliance of his labor obligations and duties, including the use of telematic means.
Installation of programs or applications on employee-owned devices
The employer cannot require the employee to install programs or applications on devices owned by the employee, or to use these devices to render remote services.
Right to promotion and collective rights
The employer must provide the same training, promotion opportunities and collective rights to remote employees that would be provided to employees who render services in the Company's premises.
Prevention of labor risks
The employer must conduct an Initial Risk Evaluation and a Risk Prevention Plan with regard to the area of the employee`s home that will be used to render services. To this end, the characteristic risks of that kind of activity must be taken into account (i.e. distribution of the working time, availability times, breaks and disconnection during the working day).
However, due to the specific nature of the "work place" any visitation or direct review of the working conditions must be justified in a written report that must be previously provided to the employee and the Health and Safety representatives and will require the employee's permission. If the employee does not give permission to visit the "work place", the preventive activity will be carried out on the basis of the information on the risks collected by the employee according to the instructions of the prevention service.
Order of priority and reversibility
Employees, who work remotely from the beginning of the employment relationship and during their entire working time, will have priority to cover the new positions that entail working in the Company premises. Therefore, employer must inform about the new positions to the remote employee and the WR.
Remote employees are entitled to return to work in the Company's premises under the terms set out in the remote working agreement or the CBA.
Remote working agreements in force before RDL 28/2020 came into force
RDL 28/2020 will be applicable to those remote working agreements that are regulated by the applicable CBA, as from the moment its term finalizes.
From the moment that the RDL becomes applicable, the parties will have a period of 3 months to formalize the remote working agreement, as well as to make the necessary modifications in the event that the remote working agreement does not derive from the applicable CBA.
Remote working derived from COVID-19
Regular labor regulations applies for remote working implemented exceptionally as a consequence of the sanitary containment measures derived from the COVID-19, and while these are maintained (i.e. RDL 28/2020 does not applied).
14.Entry into force of RDL 28/2020: 13th October 2020