On 23 September 2020, the Spanish Official Bulletin, BOE published the Royal Legislative Decree 28/2020 of 22 September 2020 regulating “homeoffice”, which entered into force 20 days after its publication. It should be noted that for the existing and in practice homeoffice, the law provides a period of 3 months to formalise the agreement or adapt the existing agreement (except where it results from collective negotiation).
This new Royal Decree puts an end to the existing irregularity in Spain, where we had more than 3 million people doing homeoffice during Covid-19, by taking up several aspects such as the limits of homeoffice, time flexibility, who has to bear the costs and which workers can benefit from homeoffice, thus updating the outdated Article 13 of the Workers’ Statute (Estatuto de los Trabajadores).
The definition given to the concept of homeoffice is particularly valuable, since only when working from home is involved should the provisions of the law be complied with. Thus, the law defines homeoffice as the form of work organization or the performance of work activity that is carried out in the worker’s home or in the place chosen by him/her, during all or part of his/her working day, on a regular basis. It is understood that there is regularity when in a reference period of 3 months a minimum of 30% of the working day is carried out in this format (or the equivalent proportional % depending on the duration of the contract). That means that in a basic contract of 40 hours and five days a week, it would be equivalent to 1 DAY AND A HALF. This implies that the company can offer “homeoffice” 1 day a week WITHOUT having to comply with the rest of the obligations set out in the law. Furthermore, the concept of homeoffice implies the exclusive or prevalent use of computer, telematic and telecommunication devices and systems.
With regard to minors under the age of 18 and for work experience and training and apprenticeship contracts, it is envisaged that a homeoffice agreement will only be possible if at least 50% of the work is guaranteed to be provided in person at office.
Without prejudice to the provisions of collective agreements or arrangements, the minimum compulsory content of the homeoffice agreement must include the following matters:
– Inventory of tools, equipment, and device for the development of work, consumables and movable elements, and the maximum period for their renewal.
– Listing of the expenses that the worker may have due to the fact of providing services at a distance, as well as the form of quantification of the compensation that the company must obligatorily pay and the time and form for carrying it out, which shall correspond, if it exists, to the provision contained in the applicable collective agreement or arrangement.
– Work schedule of the worker (beginning and end of the working day) and rules of availability.
– Percentage and distribution, where applicable, of homeoffice and presence work.
– Work centre to which the worker’s homeoffice will be assigned.
– Distance work centre chosen by the worker to carry out his/her work.
– Duration of notice periods for the exercise of reversibility situations, where applicable.
– Means of business control of the activity.
– Procedure to be followed in the event of technical difficulties.
– Specifically, applicable instructions for data protection and information security, with the participation of workers’ representatives.
– Duration of the agreement for the provision of services at a distance.
– The sections of activity and the time for activating and deactivating equipment.
Any modification must also be agreed in writing and the legal representation will be informed of it. This agreement can be signed at the same time as the employment relationship begins or at a later time, but always before the start of the homeoffice.
Workers who work 100% of their working day from the beginning of their employment relationship by remote means have priority access to positions that can be carried out totally or partially in person, for which the company must inform them of the vacancies. The agreement governing the employment relationship will stipulate the right to digital disconnection.
Distance work derived from COVID-19:
When homeoffice is applied as a consequence of the measure contained in article 5 of Royal Decree Law 8/2020 of 17TH March or as a consequence of the health containment measures derived from the COVID-19, and during the validity of the same, this Royal Decree Law will not be applicable, but companies will be obliged to provide the means, equipment, tools and consumables that are necessary and to maintain them, with collective bargaining being able to establish the forms of compensation for the expenses that this form of work implies for the worker, if they exist and have not already been compensated.
Other issues of interest in relation to homeoffice:
Dr. Frühbeck Abogados is at your disposal and offers you all the support and legal advice you need to regulate homeoffice with your employees.
The author of this article is Elena Bello from Dr. Frühbeck Abogados.