Changes to the Teleworking Regime
As part of its Deconfinement Plan, the Government now seeks to encourage the return of workers the workplace.
What is Teleworking: Teleworking, also known as ‘telecommuting’, or means working remotely, using modern technology and telecommunications to perform the functions/service/work that would otherwise be performed at the employer’s premises. In many cases (and especially during the COVID-19 Pandemic), ‘teleworking’ means working from home.
What was the Teleworking regime prior to June 1? In order to enable social distancing due to the COVID 19 Pandemic, and through the Decree-Law no. 2-A / 2020, issued by the Government on 20 March 2020, teleworking was made mandatorily available to both employees and employers, at the request of either, wherever the work in question was capable of being performed remotely.
In other words, if an employee asked to telework, an employer’s did not have a choice as to whether to grant the request, they had only to assess whether the functions were capable of being performed by remotely (i.e. by means of teleworking).
WHAT IS THE TELEWORKING REGIME AS OF JUNE 1ST, 2020?
As a general rule, Teleworking is no longer mandatory.
In its Resolution no. 40-A / 2020, issued on the 29th of May 2020, the Council of Ministers resolved that Teleworking is no longer mandatory (save for the exceptions outlined below). That said, employers still have a legal obligation to ensure the health and safety of their workers and to ensure a safe working environment.
To this end, the Resolution no. 40-A / 2020 recommends that employers reduce the risks for their employees through several measures designed to reduce the number of people present at the workplace at any one time. These can include rotating teams of employees between teleworking and on-site work, and ensuring employees have differentiated timings for breaks and meals, as well as for entering and exiting the workplace. It should be noted that employers can therefore instruct a worker to perform activities outside the workplace, namely through telework, in order to ensure the health and safety of all workers.
Exceptions to the General Rule (Situations where Teleworking is still mandatory):
Article 4 of Resolution no. 40-A / 2020 outlines certain situations where teleworking will still be mandatory when required by the worker, regardless of the employment relationship and whenever the functions in question permit:
- Where the worker is immunocompromised or chronically ill,
- Where the worker is disabled, with a degree of disability equal to or greater than 60%;
- Where the worker has a child under 12 years of age and has to accompany the child due to the suspension of classroom and non -teaching activities in school, or the suspension of social equipment for the support of early childhood. (Provided that this exception is applicable only to one of the parents, regardless of the number of dependent children)
- Where the worker has a dependent (regardless of age) with a disability or chronic illness and has to accompany the dependent due to the suspension of social support for disability (Provided that this exception is applicable only to one of the parents, regardless of the number of dependents)
Additionally, the Labour code (Código do Trabalho – Lei n.º 7/2009) provides for two more instances where employers are required to grant a request for teleworking by the employee:
- Where the worker is a victim of domestic violence (Articles 166, 195 of the Labour Code)
- Were the worker has children up to the age of three, provided the job can be performed remotely, and the employer has the resources and means to allow teleworking. (Article 166 of the Labour Code)
As of June 1st 2020, whilst it is no longer mandatory, employees and employers can voluntarily agree to maintain a teleworking arrangement. Under the Labour Code, workers and employers will need to enter into a written agreement for teleworking, where the location and terms of the teleworking can be set out (for more detail on the issues to be covered in a teleworking contract, see Article 166 of the Labour Code).
The duration of any agreement between an employee and their employers can have an initial maximum duration of 3 years (unless the company is covered by a collective regulation instrument that establishes a different timeframe).
Either the employer or the employee can determinate the teleworking agreement in the first 30 days. Wherever the teleworking agreement ends, the worker resumes work at the employer’s premises under the previously or otherwise agreed terms.
Equal Treatment and Privacy Rights of Teleworkers
Article 169 of the Labour Code states that Teleworkers have the same rights and duties as other workers with regard to:
- professional training, promotion, and career development
- Normal working hours and other working conditions,
- Safety and health at work
- The repair of any damages arising from an accident at work or occupational disease
As employers are under the obligation to ensure normal working conditions, any allowance for meals/food should continue to be available to the worker, unless otherwise agreed in the teleworking contract or in a collective labour regulation agreement. Where it is agreed that the meal/food allowance is only payable when the worker travels to the company’s premises or to another location determined by the company, then it is legitimate that the food allowance is no longer paid. The transport allowance, by its nature, may not be paid, as there is no travel and the worker does not have to bear any expense.
The employer must provide adequate training for the information/communication technologies used in teleworking. Employers should also promote regular contacts with the company and colleagues, so that the worker does not feel isolated.
Article 169 of the Labour code specifies that whenever teleworking is carried out at the worker’s home, any visits made by the employer to the employee (to visit the workplace) is only permitted for the sole purposes of monitoring the work activity and the work instruments, and can only be carried out between 09.00 and 19.00, either with the assistance of the worker being visited, or someone designated by them.
Article 168 of the Labour Code states that if the contract says nothing about the work instruments, it is assumed that they belong to the employer, who is required to install and maintain them, and to cover the related expenses.
Teleworkers may be subject to additional privacy concerns due to having to be subject to their employer’s management, control and oversight whilst working from their home. In this regard, Article 170 of the Labour Code deals with employees privacy rights while teleworking. Additionally, during the COVID 19 Pandemic, the National Data Protection Commission issued guidelines on privacy rights for teleworkers. Click here for the official document in Portuguese, and here for an informal English translation via Google Translate.
The guidelines specify:
- that technological solutions for remote control of worker performance are not allowed. These include software that tracks working time and downtime, records internet pages visited, monitors the use of mice/keyboards, captures desktop images, watches and records when you start accessing an application, etc.
- Similarly, it is not acceptable to require the worker to keep the video camera permanently on, nor in principle should it be possible to record teleconferences between the employer (or managers) and the workers.
- The need to record working times is different, which can be done by using specific technological solutions.
- It is legitimate for the employer to lay down an obligation to send e-mail, SMS etc, to enable the employer to monitor the availability of the employee and the beginning and end of working times.
Written by Lenita Bandeira and Nadir Burney – Legal Aid team at the Lisbon Project