Castellán

What is telecommuting?

"Telecommuting" -also known as "home office"- is the work modality in which the employee does not occupy a physical place in the company's facilities for which he/she provides services, but carries out the assigned tasks either totally or partially, in a different place -such as their home- using information and communication technologies.

Is it currently regulated?

It is important to highlight in the first place that currently it is a regime not legally provided for by our labor law, although a Bill has recently been presented that seeks to provide a legal framework and promote this work modality. Prior to the current health emergency context, telecommuting was a practice that in Uruguay was used by a minority group of companies that, being able to afford the necessary technological and computer means for this purpose, authorized part of their staff to perform tasks remotely. In this sense, it was mainly a possibility usually granted to high-ranking positions in organizations. However, as a result of the aforementioned governmental provision (Decree No. 93/2020 dated March 13, 2020) and at the same time, in compliance with the obligation of every employer to ensure the health, safety and hygiene of their workers, many companies are currently facing the challenge of adopting this new work dynamic.

In this context, although telecommuting was promoted as a temporary resource, due to the current need for social isolation, the truth is that, as communication technologies continue to evolve, it becomes easier to have the necessary tools to work remotely by accessing internal servers or "clouds". Inevitably, it becomes an attractive alternative for those who live far from the physical location where the employer is located, avoiding travel times and costs. Similarly, it is perceived (at least in this scenario) as interesting or beneficial for working parents with minors in their care, among other cases that could be mentioned. Therefore, despite being a practice that was imposed in a way, "forced", it seems that it has come to stay, being therefore very important a correct legal assessment by companies about its advantages and disadvantages, strengths and weaknesses.

Good practices for telecommuting from the labor law perspective

Given this new reality that concerns us, it is essential to refer to the most relevant rights and obligations for the parties, as well as to the general principles of labor law, which constitute the basis for defining the guidelines to follow in telecommuting. Especially, supplementing the aforementioned absence of specific regulations.

As a starting point, an extremely relevant issue - not included in the bill - refers to the duty of confidentiality, since workers generally have access, from their homes, to information that the company may consider relevant to keep confidential. This principle inherent in the employment contract that binds the staff to the organization remains intact. Without prejudice to this, it is a very good practice to expressly state that the dissemination of company information is prohibited, and that this rule applies even when the employee is outside the company (being a duty that remains even after the employment relationship has ended). Similarly, it is advisable to establish clearly that the breach of this obligation by workers makes them liable to sanctions and even the possibility of being held accountable for any damages that may arise.

On the other hand, the employer's obligation to provide work tools must be taken into account. Whether telecommuting is a temporary or permanent arrangement, the basic elements necessary for the performance of the tasks to be carried out must be guaranteed. That is, providing the necessary equipment and information and communication technologies for the development of tasks. Although compliance with this requirement could be understood to be somewhat "flexible" (it is logical to consider that some conveniences may be lost by not using facilities that have been specially prepared by the employer for this purpose), the truth is that this obligation is equally applicable in both remote and on-site work contexts.

Regarding the workday from home, it should continue to be the usual one (or the one agreed upon by the parties if it was modified by changing the workplace). The daily -and monthly- agreed working hours must be met, even if the employee does not attend the company in person. In contrast, the employer must also respect the so-called "worker's right to disconnect" - disconnecting from digital devices - allowing them to enjoy breaks in a legal manner. On this point, it cannot be ignored that there is a practical difficulty in controlling the time spent working remotely. There are few companies today that have an attendance recording system that allows determining the number of hours worked in this format. Unless there is future regulation to the contrary, today the workday is legally limited (although there are certain exceptions provided for). In this context, the absence of hourly control then prevents the employer from having a real knowledge of the exact number of hours worked, and therefore, whether overtime was performed. For this reason, it is necessary to bear in mind the duty of collaboration and the principle of good faith, applicable to both parties in the employment relationship, and which in this case falls especially on the working party, while the employer does not have a system that allows proper time control.

Having summarized some basic issues to keep in mind, we understand that the absence of a specific legal regulatory framework in the matter leads not only to the convenience of remembering these guiding principles of our labor law, but also to the need to define internal guidelines -criteria or guidelines- for telecommuting.

The implementation of internal regulations is convenient, through the preparation of a "manual" or "work protocol" that synthetically and centrally contains these points, for the knowledge and compliance by the staff.

Among the aspects to include in these protocols are those mentioned above, as well as the company's expectations regarding the organization of remote work. We start from the base that, despite the new circumstances, the quality standards of the service to be provided will be maintained. Employees can be informed about the desired frequency of communications with superiors, with clients, the desired times for task development, quality of expected results, etc. Issues that, in the course of the employment relationship in person, could occur naturally through periodic and direct supervision of tasks, in the exercise of the power of direction, and that in the context of telecommuting it becomes necessary to put in writing to ensure workers' knowledge, seeking their understanding and compliance.

Without prejudice to the above, it should be clarified that the internal regulations suggested above do not in any way replace the need to agree in writing individually -between company and worker- those labor conditions renegotiated as a result, for example, of a decrease in activity due to the pandemic. When the working hours or salary of a worker have been readjusted, either permanently or temporarily, it is necessary to document this understanding between the parties in writing, individually, through the signing of agreements or labor agreements modifying the employment contract that expressly request the worker's agreement.

Work Accidents

Regarding accidents that occur under the telecommuting modality, the provisions of Law No. 16.074 continue to apply, by which every employer is civilly responsible for accidents or professional illnesses that occur to their workers and employees due to work or on the occasion of it. This broad regulatory scope, including the accident occurring "on the occasion of work", determines that the telecommuter is covered by all the provisions contained in said law. We will be facing a work accident when it occurs at the worker's home or at any other place other than the employer's premises, as long as the worker was performing tasks for the employer.

Communication to the Ministry of Labor and Social Security

Finally, it is important to inform that Decree No. 94/2020 dated March 13 of the current year, declaring the national health emergency and urging the adoption of telecommuting, established the need for companies to communicate to the General Labor and Social Security Inspection the adoption of telecommuting by their staff. Although to date no sanction has been reported for the absence of this communication, the General Labor Inspection of the Ministry of Labor and Social Security has competence and sanctioning powers in labor compliance matters. Consequently, we encourage you to make this communication, understanding that it can be easily done by email to the address: inspeccióndetrabajo@mtss.gub.uy.

Final reflection

Telecommuting was suddenly implemented in our country, following a mandate from the authorities that has not been accompanied (for now) by a legal framework that provides security for companies to comply with the recommendation. However, there are elements to support that several of the practices acquired in the current context are here to stay, especially those that refer to a better use of computer tools and telecommunications. Therefore, it is vital to keep in mind these basic principles and suggested actions for adapting to the "home office" as a new work modality.

Montevideo, April 23, 2020