In 2020, Spain introduced a new law regulating remote working. Here we set out the five key requirements of that law for both employers and employees.
1. In the wake of Covid-19, there has been a surge in remote employment.
2. In response to increased remote employment, Spain has introduced a new remote working law to ensure that employee rights are protected.
3. A key element of Spain’s remote working law is the requirement for employer and employee to sign a ‘remote working agreement‘, setting out how remote work will proceed.
4. The remote working law provides a mechanism for employees to get compensated for the cost of working from home or another remote workspace.
5. An overarching principle of the new law is that remote employees have the same rights as traditional office employees.
Remote Work in 2021
The Covid-2019 pandemic has meant a massive uptake in remote work around the world since early 2020. In the U.S., for example, it was estimated in 2020 that a record 42 percent of employees were working from home.
In many countries this has meant that, due to pandemic lockdowns, laws have been introduced mandating remote work. For example, Germany’s Infection Protection Act, introduced in April 2021, legally requires employees to work at home when requested to do so by their employer.
However, remote work (whether it is voluntary or compulsory), raises a range of legal issues:
In many countries, these issues have been dealt with by attempting to apply existing law. For example, in California, under the existing California Labor Code, employers are required to indemnify employees or all necessary expenditures that are a direct response of discharging their duties (see section 2802). This law has been used by remote employees to enforce their right to be compensated for expenses.
In other countries and states, governments have introduced special laws to regulate remote working as a result of the massive increase in the practice. In this article, we set out the key elements of Spain’s new ‘decree from working at home’ or ‘remote working law’.
The Remote Working Agreement
Central to the new law is an obligation for the employer and employee to enter into a written agreement setting out remote work conditions. Upon agreement, the employee has ten days to forward it to their representatives who will file a copy with the Labor Office.
The agreement has a range of compulsory clauses setting out:
When working remotely, it is all but inevitable that various payments usually made by the employer will now be made by the employee. For example, if working from home, it is likely that the individual is consuming electricity and internet in order to perform their role.
The remote working law provides that the employee must be compensated for expenses related to the equipment and tools used in order to carry out the work role.
How exactly this is compensated should be set out in the remote working agreement. One possibility is to pay a set amount each month, a ‘remote work allowance‘ to cover this cost.
Employee Control, Monitoring and Surveillance
On site at a workplace there is a certain amount of oversight and control from management that ‘comes with the territory’. In remote working arrangements it is not obvious how employee behaviour is to be monitored. The remote working law does not specify a way in which the employee can or must be monitored, but both parties must agree on a method.
For example, employees might agree that they will be responsive with certain technological tools, such as slack, throughout the working day. Or, they may agree to the installation of time-tracking software on their device, or remote access from the employer, to monitor exactly what the employee is doing.
It is worth nothing that any such method of control, monitoring or surveillance must adhere to data protection laws.
The Right to Disconnect
In the office there is a (traditionally at least) a physical boundary between an employee’s work and non-work life — the office doors. In remote work, this boundary is less obvious. Consequently, it is important that there is a structure forcing the individual to ‘disconnect’ from their work environment.
The remote working law enforces this work/life balance by requiring the employer to force a disconnect between the two, such as a limit on the use of business and work communication outside set working hours.
Health & Safety
In the office, the employer has responsibilities under health & safety legislation (sometimes called ‘occupational health’ laws), to ensure that the workplace is safe.
Under the remote working law, the employer must perform a risk assessment of the working environment to assess any possible impact on health and safety. For any such identified areas, both parties need to come up with some way of managing those risks. For example, the tendency of remote work to lead to increased work hours runs the risk of employee burnout: Employers need to put in place policies and procedures to mitigate that risk.
Note, such an assessment will only cover the areas of the remote workspace that are connected to the employee’s work.
Commonly Asked Questions
How is Remote Work Defined?
The remote working law defines remote work: Work is remote where it involves providing services from home, or another place of the employee’s choosing. Work must occur at the remote location for at least of 30% of working hours over a three-month period (though there are some exceptions).
Can Employees be Forced to Work Remotely?
Not under the remote working law. While remote work might be enforced by separate Covid-19 laws and decrees, the remote working law makes it voluntary for employers and employees to permit remote working.
What Rights do Remote Employees Have?
They have all the same rights as they would in a regular workplace. In large part, the purpose of the remote working law is to ensure that the individual employee is treated the same as they would be in the workplace. ‘Normal’ work rights apply equally in the remote environment, as they would in the office, including freedom from discrimination and equal employment opportunity.
Note, remote employees have the same right to collectively bargain as any other employees.
Does the Remote Working Law Apply Equally to Independent Contractors or Freelancers?
No. It is up to independent contractors and freelancers to take care of their own working conditions. As independent contractors are usually able to deduct a range of equipment and tools costs from their net income, reimbursement for expenses tends to be less of an issue.
It is worth emphasizing, however, that employers need to take care when engaging independent contractors that they do not misclassify employees.