The New Telework Regulations

Until now, remote work situations were governed by article 13 of the Workers’ Statute, but the increase in telework due to the pandemic has changed everything. 

The Government has approved and published in the BOE on 23/09 the Royal Decree-Law 28/2020 , on remote work, to regulate it. The entry into force is 20 days after its publication, that is, on 10/13. We summarize the most important of this new telework regulation that will give a lot of work to the legal and human resources departments.

Entry Into Force And Under What Circumstances Does It Apply

The entry into force, as we have already said, is 20 DAYS after publication in the BOE. As this was 9/23, it would be in most cases 10/13. However, there are several additional, transitory and final provisions that apply from the day of their publication.

RDL 28/2020 applies to remote work as defined in this standard. However, it must be made clear that it leaves out the remote work implemented exceptionally in application of article 5 of RDL 8/2020, or as a consequence of the health containment measures derived from COVID-19. This circumstance of teleworking is still regulated by the previous laws.

However, to remote work as a result of sanitary containment measures, the following two points are equally applicable:

• The companies will be obliged to provide the means, equipment, tools and consumables required for the development of remote work, as well as the necessary maintenance.
• Collective bargaining will establish the form of compensation for the expenses derived for the worker from this form of distance work, if they exist and have not already been compensated.

The first transitory provision establishes that the distance work agreement, which we will talk about later, must be formalized within THREE MONTHS from when RDL 28/2020 is applied to the employment relationship. 

The same term is established to modify individual distance work agreements in force on the date of publication of the RDL. When there are collective agreements or conventions, the entry into force will be when they cease to be in force, or one year after the publication of the RDL, if they do not foresee a term, unless otherwise agreed.

What Is Remote Work And What Is Telework?

First, what is distance work, face-to-face work and telework is defined, since this RDL 28/2020 regulates distance work (not only and exclusively telework)

• Distance work is that which is provided at the home of the worker or in the place chosen by the latter, during the entire day or part of it, on a regular basis.
• Telecommuting is distance work carried out through the exclusive or prevalent use of information technologies.
• Face-to-face work is that which is provided in the workplace or in the place determined by the company.

Therefore, although we are talking about telework regulations, it really regulates teleworking more broadly.

In addition, for it to be considered distance work, it must take place in a reference period of 3 months, a minimum of thirty percent of the day, or the equivalent percentage depending on the duration of the employment contract. In contracts with minors, in practices and for training and learning, a distance work contract can only be made if it is guaranteed that 50% of the work will be face-to-face.

Therefore, these telework regulations should, strictly speaking, be defined as telework regulations.

Equality From Distance Work To Face-To-Face Work In Rights

The law considers that remote work should not impair the rights that the worker has in face-to-face work. Specifically, with regard to pay, job stability, working time, training and career advancement. They must receive the same remuneration and supplements that they received when they performed remote work.

In detail, they may not receive less remuneration or increase working time, due to technical difficulties not attributable to the worker. They will also have the same right to adapt to the working day established in article 34.8 of the Workers’ Statute, so that work does not interfere with personal and family life.