On 23 September, Royal Decree-Law 28/2020 (RDL), of 22 September, on teleworking, the so-called Teleworking Law, was published in the Official State Gazette (BOE).
It is the first time that telework is explicitly regulated in Spain, and its main features are:
- The regulation applies to workers who carry out telework on a regular basis, i.e. 30% of the working day in a period of 3 months.
- The RDL defines what is considered to be a) on-site work, which is work carried out at the company’s workplace, b) remote work, which is work carried out at the worker’s home, or the place chosen by the worker, and c) telework, which is remote work carried out by telematic means.
- For minors and traineeships, at least 50% of the working day must be spent working in person.
- It is voluntary, both for the worker and the company, and is reversible.
The agreement on remote working between the company and the worker must be in writing and formalised before the remote work begins. Of the obligatory content (art. 7), the following must be highlighted:
- Inventory of the necessary means, equipment and tools.
- Expenses that the worker may incur due to teleworking and how to quantify and compensate them. The compensation of expenses is compulsory and, foreseeably, will be regulated by agreement in the future.
- Working hours and, if applicable, availability rules.
- Percentage and distribution between face-to-face and remote work, if applicable.
- The company’s work centre to which the telecommuter is assigned and where, if applicable, he/she will carry out the part of the working day that is face-to-face.
- The place of telecommuting chosen by the telecommuter to carry out the telecommuting work.
- Means of company control of the activity.
- Duration of the telecommuting agreement.
Please note that:
- The agreement can be modified, by mutual agreement, and teleworkers have preference in filling face-to-face jobs.
- Teleworkers are entitled to the provision and maintenance of work tools by the company.
- The means of monitoring must record the start and end time of the working day.
- The risk assessment must take into account the risks associated with this type of work.
Guarantees that the company must offer under the telework law
The company must also guarantee:
- The worker’s right to privacy and data protection. This is especially relevant if the means of control affect personal devices.
- The right to digital disconnection, limiting the use of technological means.
- The participation of teleworkers in activities organised by their legal representation, if any.
- Equal opportunities with face-to-face workers and non-discrimination.
The company may adopt the measures it deems most appropriate for monitoring and control in order to verify the worker’s compliance with his or her work obligations and duties, including the use of telematic means.
Companies that currently have teleworkers have a period of 3 months to formalise the telecommuting agreement.
Emergency legal proceedings
An emergency judicial procedure is established for the processing of claims regarding access, reversal and modification of remote work:
- The worker will have a period of twenty working days, from the time the company informs him/her of its refusal or its disagreement with the proposal made by the worker, to file a claim before the Social Court.
- The procedure shall be urgent and preferential treatment shall be given. The hearing shall be scheduled within five days of the date of admission of the application. Judgment shall be given within three days. No appeal shall lie therefrom.
In the case of remote work implemented as a consequence of the health containment measures derived from COVID-19, and as long as these are maintained, the ordinary labour regulations will continue to apply.
In any case, companies are obliged to provide the means, equipment, tools and consumables required for the development of remote work, as well as the necessary maintenance.