A legal act issued last December defines new rules for telework, effective in Portugal from January 1st, 2022. The amendments brought to light a much more detailed regulation for remote working options (teleworking) which includes more options and, to that extent, flexibility, whilst setting, nevertheless, mandatory provisions on certain subject matters.
Some of the main changes may be summarized as follows:
- Remote work duration – Remote work – be it for working fully remote or on an alternated remote/on-site model – may be agreed on an open-ended basis or for fixed periods of time (of up to six months).
In the open-ended model, both employer and employee are entitled to terminate the teleworking by written communication subject to 60-days prior notice. Teleworking agreements executed for fixed periods are automatically renewed, if neither party objects, with 15-days prior notice.
- Employees entitled to work remotely – Provided the employer has the resources and means to allow teleworking and the role allows remote performance, the employee is entitled to provide telework in the following cases: (a) the employee has been victim of domestic violence, in circumstances that entitle him/her to a workplace transfer; (b) employees with children up to three years old (except when working for a micro-enterprise); (c) employees with children up to eight years of age, (i) when both parents are in a position to telework and do it in successive periods of equal duration, for up to 12 months, (ii) in a single-parent family or (iii) in a family where only one parent is able to telework; and (d) employees holding the status of non-main caregiver (limited to a maximum of four years).
In any other cases, i the employee requests to switch from on-site work to working remotely (whenever the role is compatible with remote work and the company has the resources that allow it), refusal by the employer must be motivated and reasons provided to the employee in written form.
- Minimum content of the remote work agreement terms – The agreement, subject to written form, must indicate whether remote work will be fulltime or alternate with on-site work. Remote place of work must also be indicated and an amendment to the location requires new written agreement. A few of the previously required terms – such as indicating normal working hours, work schedule, role, remuneration and ownership of work instruments – are still required and an optional reference may be made to the minimum frequency of face-to-face contacts between the employee and his/her colleagues and reporting line, mitigating isolation risks.
- Remote worker rights and guarantees – Minimum 24-hours advance notice should be given to schedule remote work meetings or tasks to be undertaken at specific moments or in articulation with other employees. Remote control of teleworking should preferably be carried out by communication and information resources allocated to the performance of the activity, according to procedures previously known to the teleworker, that are proportionate and respect the employee’s privacy and it is forbidden to impose a permanent connection, by sound or image, during working hours (or otherwise). Remote workers are entitled to take part in meetings with employee representative structures, both in person and remotely (in this case, using the work IT and communication means provided by the employer). In person monitoring of the work performed remotely (form home) is possible but: (i) subject to a 24 hours’ prior notice, and (ii) the employee´s agreement, (iii) performed in the employee’s presence, (iv) during working hours; and (v) without the use of image or sound caption or other means that could affect employee’s right to privacy.The employer must ensure or pay for the repair and maintenance of the equipment and software used in telework, regardless of the respective ownership.
Health checks must be completed before the implementation of teleworking and, subsequently, annual health checks must evaluate effects on the employee’s health condition resulting from work being performed remotely and adequate preventive measures recommended.
The employee is entitled to reimbursement of additional expenses resulting from the use and maintenance of the IT and communication equipment and software working tools (additional power expenses and access to data transmission network with adequate features and speed).
- Remote worker duties –The teleworker is subject to the same duties as a face-to-face worker in an identical situation and must report to the company premises or other locations indicated by the employer, if summoned with at least 24-hours’ notice. Such travel expenses must be borne by the employer in the part exceeding the normal cost transportation between the employee´s home and the place where he or she would normally attend work. The teleworker shall (i) inform the employer in a timely manner of any malfunctions or defects in the operation of the equipment and programs used in the performance of the activity, (ii) comply with instructions concerning the security of the information generated or used, (iii) respect any restrictions previously imposed on the personal use of the equipment and programs made available for teleworking and (iv) comply with the rules of health and safety at work.
Companies prevented from contacting employees out of working hours
The new law also approved a specific measure ruling that all employers must refrain from contacting any employee – not only teleworkers – during their rest periods, except in force majeure situations. Breach of this rule entails fining of the employer.
Key Action Points for Human Resources and In-house Counsel
- Companies should review existing remote working agreements and should revisit existing remote work policies or consider preparing such policies.
- Companies should consider preparing or reviewing existing policies or company etiquette procedures or codes of practice regarding contacts outside of working hours.