Remote work: a summary of the current legal frameworkWritten by Amanda Carvalho
The reality, as we already know, is new. The pandemic caused by COVID-19 forced other ways of living. In the case of work, it was no different. The office has moved into the living room, the bedroom, or, in some cases, even the kitchen. Some found in this new way a path to more productivity; others did not adapt. But the law is the same for everyone. And it’s about laws that we are talking about.
Since January 1st, there is a new legal framework for remote work. We are referring, specifically, to the changes introduced in the Labor Code by Law 83/2021, of December 6th. It is based on this document that Areias Advogados summarizes the main rules of remote work.
Concept of Remote Work
There was a broadening of the concept of remote work, now providing that remote work is the provision of work in a regime of legal subordination of the employee to an employer, in a place not determined by the latter, through the use of information and communication technologies.
Remote Work Agreement
The implementation of remote work always depends on a written agreement, which can be included in the initial employment contract or be separate from it.
If the activity contracted with the employee is compatible with the remote work regime, the proposed agreement made by the employee may only be refused by the employer in writing and stating the grounds for refusal.
The remote work agreement must contain and define all the elements set out in article 166, no. 4 of the Labour Code and may be concluded for a fixed or indefinite period.
If the remote work agreement is concluded for a fixed period, it cannot exceed six months and it is automatically renewed for equal periods, if neither of the parties declares in writing, up to 15 days before its expiry, that they do not intend to renew it. When the agreement is for an indefinite period, either party may terminate it by written notice, which will become effective on the 60th day thereafter.
Either party may terminate the agreement during the first 30 days of its execution.
Duties of the Employer
The employer is responsible for providing the worker with the equipment and systems necessary for carrying out the work and for worker-employer interaction, and the remote work agreement must specify whether they are supplied directly or acquired by the worker, with the employer’s agreement as to their characteristics and prices.
The employer will compensate for all additional expenses which the worker incurs as a direct consequence of acquiring or using the equipment and computer or telematics systems necessary for the provision of the work. This compensation is due immediately after the expenses are incurred by the employee and IT is considered, for tax purposes, a cost for the employer and it is not considered taxable income for the employee.
The remote work employee has the same rights and duties as other employees of the company with the same category or identical function.
When the employee is in a remote work regime, the employer must respect his privacy, his working hours and his family’s rest and relaxation times, as well as provide him with good working conditions, both physically and mentally.
Health, Safety, and Occupational Accidents
The employer must promote health examinations at work before remote work is implemented.
The employee must provide access to the place where he/she works to the professionals designated by the employer who, according to the law, are in charge of the evaluation and control of safety and health conditions at work, in a previously agreed period, between 9 am and 7 pm, within working hours.
The legal scheme of compensation for accidents at work and occupational diseases applies to remote work situations, the place of work being considered the place chosen by the employee to habitually carry out his activity and working time all the time during which, demonstrably, he is providing his work to the employer.
The employer has to refrain from contacting the worker during the rest period, except in situations of force majeure.
It is the responsibility of the service with inspection powers of the ministry responsible for the employment area to monitor compliance with the regulations governing the remote work regime. The inspection actions that involve visits of inspection authorities to the home of the employee require the consent of the employee and the communication of their realization at least 48 hours in advance.
Areias Advogados is available to clarify your doubts and provide support on this issue. Contact us to clarify your questions.