Telecommuting: Companies' adaptation period to the new law has ended.
As we informed in due time, on August 20, 2021, the 'Telecommuting Law' (Law No. 19,978) was approved, which finally regulated the subject in our country (https://www.castellan.com.uy/es/noticias/90/teletrabajo-iquest-que-deben-saber-las-empresas-sobre-la-nueva-ley.html). In it, a period of six months from its promulgation was established for the adaptation of the working conditions of those who were working under this modality, to its provisions. This deadline expired on February 20, 2022.
What aspects should the parties have adjusted or reviewed during these 180 days?
In particular, companies and their workers had to:
- Agree in writing and expressly if tasks would be carried out (totally or partially) under this modality;
- Agree on the place or places where these tasks would be performed;
- Establish the weekly working hours (allowing, unlike what is established in our general regime, the compensation of hours between days, without generating the right to overtime pay);
- Guarantee the right to disconnect from digital devices and to effectively enjoy breaks;
- Agree on which work tools would be provided by the employer;
- Verify compliance with the required safety and occupational health conditions for telecommuting.
Lack of regulation
To this date, the law has not been regulated. While several of its points do not pose major problems, for other aspects regulation is urgent. For example, regarding the conditions in terms of safety, ergonomics, and occupational health that will be applicable to this modality.
In this sense, several companies are waiting for the regulatory decree to make changes to employment contracts and comply with what is indicated by the law, and even to decide whether or not they want to move forward with the provision of tasks definitively under this modality.
It is important to note that, although it is unlikely that the Ministry of Labor and Social Security will begin to monitor compliance with the law at this stage, it has the power to do so, eventually being able to sanction according to the general sanctioning regime.
Likewise, having passed the adaptation period, employers are already liable to receive individual and/or collective claims for any non-compliance, so it is advisable to make adjustments to the law as soon as possible, without prejudice to any changes that may be required when the regulation is issued.
Telecommuting under Law No. 19,978 and the health emergency.
It should be noted that the law does not refer to telecommuting used as a temporary tool during the ongoing health emergency. The purpose of the norm is to regulate for those cases in which the modality is agreed upon between the parties of the employment relationship as definitive (totally or partially but without a time limit). It is in this latter hypothesis that it is mandatory to comply with the conditions required by the aforementioned law.
However, it is equally advisable for companies that continue to use remote work due to the pandemic to internally regulate the guidelines for performing tasks in this regime and, if possible, cover the aspects that are relevant to specific legislation. For these purposes, the implementation of a Telecommuting Protocol is a business practice that we strongly suggest.
Montevideo, February 24, 2022.
