Employment

Summary

According to EUROSTAT, more people started to work from home following the introduction of the social distancing measures in response to the COVID-19 pandemic. In 2020, 12% of employed people aged 20-64 in the EU usually worked from home, while this share had remained constant at around 5 or 6% over the past decade. Around one in four employed usually worked from home in these capital regions: Eastern and Midland in Ireland (25%), Wien in Austria and Hovedstaden in Denmark (both 24%) as well as Île-de-France in France, Utrecht in the Netherlands, Luxembourg (single region) and Lisboa in Portugal (all 23%). In the context of this increasingly importance of remote work, Portugal approved new employment legislation aimed to rule the relationship between employer and employee within this new model of work organization. Effective as of January 1, 2022, new legislation is in place addressing not only the remote work, but also elaborating on the employee’s right to disconnect. Despite some new challenges, Portugal remains focused in getting the conditions for wider implementation of flexible ways of work. This is an opportunity also for everyone, including for newcomers, to introduce harmonized policies. A good set of policies on flex work and the right to disconnect will be helpful to meet the requirements of Portuguese law and to bring labour relations to a new level.

Working from Home

Formalisation

The provision of telework continues to require written agreement, either as an amendment to the original employment contract or as separate one. This agreement should notably rule the following topics:

• Regime of permanence or alternation between distance and on-site work;
• Place where the work is usually carried out and which will be considered, for all legal purposes, as the workplace;
• Whether the equipment and systems are supplied by the company or acquired by the employee, as well as the person responsible for their installation and maintenance;
• Frequency and form of face-to-face contacts;
• Restrictions and conditions regarding the use of the equipment and systems for personal purposes (this provision is not mandatory, but it is advisable).

In addition, the possibility of refusing the provision of work through telework has been changed under the new legislation. The employee may refuse the employer telework proposal without having to justify such refusal. However, if the functions performed are compatible with the telework regime, the employee's request can only be refused by the employer in writing and with a justification for such refusal. Having this in mind and given the provisions of the new legislation, many companies are implementing remote work policies ruling and defining the activities and conditions under which telework may be accepted by the employer.

Duration and termination

According to the new law there are basically two models of telework agreement:

• Fixed-term
  • Up to six months;
  • Renewable for same periods;
  • Either party may terminate the agreement in the first 30 days of execution;
  • Either party may terminate it by giving notice up to 15 days prior to the end of the term.
• Undetermined duration
  • Either party may terminate the agreement in the first 30 days of execution;
  • Either party may terminate the agreement by giving notice 60 days prior the intended date of termination.

Working instruments and tools

Under the new legislation, there is now an express obligation for the employer to provide the employee with the equipment and systems necessary for teleworking and employee-employer interaction. Moreover, the employer has also become responsible for bearing any additional expenses which the employee can prove to have incurred as a direct consequence of acquiring or using computer or telematic equipment and systems to carry out the work, including additional costs of energy and internet connection. For the purposes of this law, additional expenses are (i) those arising from the acquisition of goods and/or services which the employee did not have before the agreement, as well as (ii) those determined by comparison with the expenses of the employee in the same month of the last year before the implementation of the telework agreement. As one can easily identify, there are still remaining questions: Is the employee really going to be able to evidence increased costs given that many of them were already working from home during the pandemic lock downs? How should the payment of the increased costs be carried out when two or more cohabitants are teleworking? And how the privacy related rules will be taken into consideration if the employees are required to submit personal bills? This will be an analysis on a case-by-case basis, considering the principles of non-duplication of compensation and of proportionality and adequacy. But nevertheless, ultimately one may claim that employees will be hardly able to evidence such increased costs. And if no such evidence is submitted by the employee, then no payment is due. As a matter of fact, as per the law such reimbursement will be due immediately after the cost being incurred by the employee, which is being already construed by some supervising authorities as the payment being due at the end of the month following the presentation of proof of expenses. Given the difficulties for the employee in evidencing these cost, as well the potential increase in administrative tasks for the employer, many companies are implementing monthly remote work allowances. While these allowances will simplify the process, they will likely be considered as a taxable income for the employee, which otherwise will not happen with the reimbursement of expensed as provide in the law.

Employee’s Privacy

As was already the case under the previous legislation, the employer must respect the employee's privacy, his working hours and his family's rest times, as well as provide him with good working conditions, both from a physical and psychological point of view. Although, when teleworking is carried out at the employee's home, the employer can visit the employee’s workplace to control (i) work activity or (ii) work instruments. However, the employer is now obliged to respect a 24-hour prior notice for such visit and to obtain the employee's agreement. Furthermore, it is important to note that there are no longer any doubts (if there were yet any…) that capturing and using images, sound, writing, records or any other means of control that might affect the employee's right to privacy are fully forbidden, being the breach of that rule considered a very serious offense.

Health and Safety at Work and Occupational Accidents

In the scope of the new legislation, a set of rules concerning safety and health at work, as well as occupational accidents was also foreseen:

• Duty of the employer to promote occupational health examinations before the implementation of telework and, subsequently, annual examinations to assess the employee's physical and mental aptitude to perform the work under this scheme.
• Duty of the employee to provide access to the place where he/she performs work for the purposes of assessment and control of safety and health conditions at work, in a previously agreed period, between 9 a.m. and 7 p.m., within working hours.
• For purposes of occupational accidents and diseases compensation, place of work is deemed to be the place chosen by the employee to habitually carry out his/her activity and working time is deemed to be all the time during which, demonstrably, the employee is providing his/her work to the employer.

Duty to abstain from contact

On 21 January 2021, the European Parliament approved a resolution stressing the importance of the right to disconnect and calling on the Commission to prepare a directive “that enables those who work digitally to disconnect outside their working hours”, being added as well that this directive “should also establish minimum requirements for remote working and clarify working conditions, hours and rest periods”. Being considered that “workers’ right to disconnect is vital to protecting their physical and mental health and well-being and to protecting them from psychological risks”, disconnecting is defined “as ‘not [engaging] in work-related activities or communications by means of digital tools, directly or indirectly, outside working time”. This resolution and the proposals therein raised concerns, but one thing was clear: the right to disconnect was in the centre of the discussions on the new work models. In Portugal the new legislation also reflected this concern on the right to disconnect, but having a rather different approach and focus: the duty to abstain from contact. According to the legislation in force as from January 1, 2022 the employer now becomes responsible to refrain from contacting the employee during his/her resting period, except in situations of force majeure. Furthermore, it was also foreseen that the breach of this rule, which applies to all employees (and not only to those teleworking) is considered a serious misdemeanour. Since the provision for this duty was carried out in rather general terms, it is currently raising many practical questions in its implementation, including:

• What should be considered as force majeure situation?
• What should be understood as “employer” for this purpose?
• What kind of contacts shall be included in the scope of this duty?

Cases of force majeure

The law does not provide for any definition of what should be included in this concept. However, given the general principles of the law, as well as some guidelines already issued for public administration, force majeure is an undetermined concept, which should be assessed on a case-by-case basis, covering, namely, situations in which the contact proves to be imperative, as it is indispensable to prevent or repair serious damages.

Concept of employer

Another issue which has also been raised, concerns the determination of the concept of employer for this purpose. Is the contact from a direct manager the only one considered for this law? And what if the contact is made by a colleague or even by someone of a different team? Once again, the law does not provide any kind of definition, however it seems that not only all contacts from direct or indirect employee’s superiors should be considered, but also work colleagues under certain circumstances, namely when the contact of the colleague in question has the purpose of requesting information or collaboration in matters related to the provision of work.

Means of Contact

As regards the contacts covered, as a matter of principle all means of contact shall be included: e.g. telephone calls, text messages, e-mails, etc. However, doubts remain as to whether or not sending, for example, an e-mail to an employee during his rest period but intending for that employee to reply or follow up on it only when he resumes work, constitutes a violation of the duty to abstain from contact. This is yet a somehow controversial topic. There is already a public authority recently stating such conduct does not constitute a non-compliance with the duty to abstain from contact, provided that in the referred e-mail (i) no reply is requested, and (ii) no other immediate action is determined to the employee. Nevertheless, this approach, as said, is far from being generally accepted, despite the apparent strictness of the law not being often matching the flexibility required in today’s business life. For this reason, the implementation of internal policies stressing notably that each employee is required only to answer during his/her work journey are more than advisable as tools to prevent breaches to the duty to abstain from contact.

Conclusion

While the first echoes on this new legislation were somehow disturbing, they were probably a bit exaggerated. No doubt that there is yet a long run to consolidate these work models and to add new worldwide trends such as increased flexibility or digital nomads. There are several questions pending to be answered and legal provisions to be clarified. Maybe there is a mentality twist that did not fully happen yet.  Nevertheless, this new legislation provides for a set of rules that ultimately will assist employers and employees with the implementation and organization of remote work. And in a way this legislation while needing to be perfected still claims for work life balance.