The key points of the new law on remote work in Spain
Spain’s Council of Ministers has given the green light to the first regulations on teleworking in Spain. In this article we sum up the main points of Royal Decree-law 28/2020, of 22 September, on remote working.
First of all, the distinction should be made clear between work on the premises and remote working, often referred to as teleworking:
- Remote working: is a form of organising work so that it is regularly performed at a place other than the usual company premises or offices (e.g. at the worker’s home, or another place chosen by the worker) for all or a part of the working hours.
- Teleworking: is a sub-category of remote work, which is carried out exclusively or predominantly via information and communications systems.
- Work on the premises: work performed at the workplace or place determined by the company.
The key points of the regulation are as follows:
It regulates remote working done on a regular basis, which means at least 30% of working hours, over a reference period of 3 months, or the equivalent proportion depending on the duration of the employment contract. This means that remote working which does not reach this minimum amount is subject to ordinary employment regulations.
Work under employment contracts for work with children, internships, or training and apprenticeships may only be performed if assurance is provided that 50% of working hours will be on the premises.
It sets out equal treatment and opportunities, and non-discrimination for persons who work remotely, in line with conditions for work on the premises.
Employee and employer must voluntarily enter into a remote working arrangement.
Possibility to revert to/from remote working for both employee and employer.
There must be a written remote working agreement, which may be incorporated into the original employment contract, or arranged at a later date, but which must be formalised before the remote work begins.
This written agreement must be sent to the workers’ legal representation in a period of no more than 10 days from the date of formalisation, and to the state employment office. If the workers do not have legal representation, a copy should be prepared and sent to the state employment office.
It sets out the compulsory minimum contents of the remote working agreement, summarised as follows:
- Inventory of the means, equipment, and tools required
- Working hours and rules on availability
- Proportion and distribution of work on the premises and remote work, if applicable
- Company workplace to which the worker is assigned
- Remote place of work chosen by the worker
- Duration of notice periods for reverting to/from remote working, as applicable
- Means of employee monitoring to be used by the company
- Procedures in case of technical difficulties that impede the normal performance of remote work
- Instructions on data protection specifically applicable to remote work
- Instructions on information security for remote work
- Duration of the remote working agreement
It provides that the company shall be responsible for providing and maintaining “all means, equipment, and tools” the worker needs to perform his/her work remotely, as defined in the signed agreement.
It stipulates that the company must pay for or compensate the performance of remote work and “it may not assume that the worker will bear the expenses related to the equipment, tools and means related to the performance of his/her work, as laid down in the written agreement’s inventory”. The mechanisms for determining, bearing, and compensating these costs will be set out in the collective bargaining agreement.
Remote workers will have the right to flexible working hours, subject to compulsory availability, and regulations on working hours and rest periods.
Regarding prevention of occupational risks, the evaluation and planning of the relevant actions is limited to the work space, and, if a visit to the place of work is necessary, a report justifying this need, together with access authorisation from the employee are required. In the absence of such authorisation, the prevention service must obtain information from the worker.
Remote workers are guaranteed the right to privacy, data protection, and digital disconnection.
The regulation does not cover remote working implemented in light of the COVID-19 containment measures. While these measures continue, this work will continue to be subject to employment regulations. Companies in this provisional situation must still provide the means, equipment, and tools, although they are not required to compensate expenses. Rules on compensating expenses may be established by collective bargaining.
The Royal Decree-law enters into effect 20 days from publication. It is forecast that prior collective conventions and agreements on remote working will remain effective for their duration, or for a maximum of one year from the publication of the RDL, which may be extended to three years by agreement. A deadline of three months from adoption of the regulation is established for modifications to individual agreements.
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