Castellán

Although telecommuting was suddenly implemented driven by the need to reduce population mobility for health reasons, it is expected to continue being a modality chosen by numerous companies and organizations in the future.

As we timely informed, it was a regime not legally foreseen in our country. Due to this legal vacuum and the characteristics of remote work (which made it difficult to apply various provisions of the general regime), it implied for companies the need to carry out a rigorous evaluation of those aspects of the employment relationship that would be affected by its implementation. We already reflected on these issues in April 2020 (https://www.castellan.com.uy/es/noticias/68/teletrabajo-adaptacion-de-lasempresas-a-la-modalidad-del-ldquo-home-office-rdquo.html).

Finally, as is known, last week the Parliament approved a \"Telecommuting Law\" that came to regulate the subject, laying the foundations of the rights and obligations of the parties that adopt this modality.

What does the Law understand by Telecommuting?

It is the provision of work (total or partial) outside the physical environment provided by the employer, using information and communication technologies, whether interactively or not (online-offline).

Who does the Law apply to?

To dependent employment relationships in the private sector and in non-state public law companies. It excludes independent workers (service leasing, etc.) and public officials from its scope.

What are its fundamental principles?

The Law establishes five guiding principles:

- Voluntariness: The worker must agree to this work modality;
- Reversibility: The parties can modify the in-person work modality to telecommuting or vice versa, with prior written agreement. The norm also adds that, if telecommuting is agreed upon in a relationship that initially developed in person, both the teleworker and the employer will have the right to unilaterally terminate it within 90 days of telecommuting, giving notice to the other party at least seven days in advance.
- Equality: The teleworker will have the same labor rights and working conditions as those who perform the same task in person;
- Non-discrimination: For reasons of nationality, ethnic origin, race, sex, age, sexual orientation or gender identity, marital status, religion, economic, social, cultural, disability status, etc.
- Employment promotion: It is recognized as a necessary modality for job creation and particularly for access to job positions for people with family responsibilities, people with disabilities, or those they depend on.

Where should telecommuting be provided?

It is provided that the parties must agree on the place where telecommuting will be carried out, which may be at the employee's home or at another defined location. Likewise, in cases where the task allows it, it can be agreed that the employee can freely alter the place where the activity is carried out. The key is that in no case can the teleworker demand that the employer provide a place to provide the services.

What does the Law establish about the work schedule?

It is at this point that the greatest departure from our current legal regime occurs. In this sense, the possibility of agreeing on a \"flexible\" schedule to be carried out during the week is expressly enabled (at the convenience of the worker) as long as it does not exceed the legal maximum weekly hours applicable to the company's activity (e.g. 44 hours) or the one contractually established, if any.

In this regard, if the 8-hour daily work limit is exceeded, it will not necessarily generate the obligation to pay overtime, as that excess working time can be compensated on other days of the same week, and only the hours that exceed the weekly maximum will be paid as overtime (with a 100% surcharge on the hourly rate on business days). In this case, the total hours worked per day should not be considered, but rather the total hours worked in the week, which is the most novel aspect.

Furthermore, the Law provides that the parties may establish an \"attendance record\" for the purpose of controlling the actual working time, determining the total number of hours worked, and enabling that compensation.

On the other hand, the Law also establishes the right to disconnect of the teleworker from digital devices and not to respond to employer communications, etc. during breaks, to ensure the effective enjoyment of these. The minimum disconnection must be 8 hours (continuous) between shifts.

Who should provide the tools and work equipment?

As a general rule, the freedom of the parties to establish it is provided, that is, whether the employer and/or the worker will provide them, whether the company will bear the cost of their internet connectivity or whether it will be the latter who assumes it, etc. This must be recorded in writing in the employment contract.

It is important to bear in mind that if there is no agreement between the parties prior to the start of remote work, it will be the employer who must provide the equipment, supplies, and tools, and who must bear the costs of operation, functioning, and maintenance of these.

Finally, it should be noted that the tools and equipment provided by the employer (or the cost assumed by them) will not be considered salary. This is relevant because these amounts will not affect other items (leave, dismissal, etc.) or constitute taxable income for BPS.

What are the obligations established in terms of Occupational Health and Safety?

As with the general provisions of our law, the new law states that the employer is responsible for guaranteeing the safety and health of teleworkers, and delegates to the MTSS the adoption of a regulatory standard to determine the working conditions, safety, ergonomics, and occupational health that will apply.

However, the issue presents a practical problem, which is the material difficulty in verifying the effective compliance of the worker with the indicated safety measures and in general with everything related to the conditions of the physical space that the employee chooses to perform the tasks.

To address this, the same law provides for the possible intervention of the General Labor and Social Security Inspection (of the MTSS) who will have supervisory powers. Even if the worker does not authorize entry into their home, the IGTSS could request a court inspection.

Regarding work accidents and occupational diseases, the provisions of Law 16.074 continue to apply in full, and the obligation to contract the mandatory insurance from the State Insurance Bank remains.

This is another major issue: the boundary between work-related and domestic accidents. It will be crucial in this regard that the regulations are adequate and reasonable, for example, in terms of the evidence of these.

What happens to the staff already telecommuting to date?

Employers whose workers are already working under this modality will have a period of 6 months from the date of the law's promulgation to adjust the working conditions of their staff to what is established in it.

Montevideo, August 18, 2021.