Mobile working regulations in Spain

1. Is there any legislation relating to working from home in your country?

Yes. Remote working is regulated in art. 13 of the Spanish Workers' Statute and in Royal Decree-Law 28/2020 of 22 September on remote working.

Remote working regulations apply to all employees who are teleworking on a regular basis – i.e. providing services on remote at least 30% of their working time in a reference period of 3 months. 

These special regulations do not apply to employees who do not provide remote services on a regular basis as well as those who provide services remotely as a measure of health containment derived from the COVID-19. 

That said, this last group of employees should be provided with necessary equipment and tools for providing services on remote – as well as their technical maintenance – and compensation of expenses (if any) should be agreed through collective bargaining. 

2. How can working from home be implemented in a company, e.g. through collective bargaining agreements, unilateral decision, or employment contracts?

Remote working cannot be imposed unilaterally by the company or by the employee, it should be agreed between both parties. 

In order to do so, and before beginning to work remotely, a written agreement must be formalized and be attached to the employment contract. This agreement should regulate, among other things:

  • An inventory of the resources, equipment and tools necessary for providing services;
  • Expenses in which the employee may incur, as well as how this should be calculated;
  • Term of the remote working arrangement and notice periods for reversing it;
  • Percentage and split between on-site and remote working;
  • The company's control measures;
  • The employee's chosen remote working location.

Moreover, the company will provide the employees' representatives with copies of all remote working agreements and details of all actions taken. Once the above has been done, said copies will be sent to the employment authority. 

3. Can an employer force an employee to work from home?

No. Remote working is voluntary and reversible for the employee and for the company. 

4. Can an employee force an employer to allow him to work remotely?

No. 

However, when an employee asks to work from home due to child care, the employer's refusal must be justified on objective grounds (Article 34 SWS), such as technical impossibility and potential business disorganisation.

5. Does an employer have to provide the employee with office equipment and supplies for remote working?

Yes. Employees are entitled to adequate provision and maintenance of all the necessary resources, equipment and tools. Also, the company should provide technical assistance when needed. 

6. Does a company have to reimburse an employee for expenses while working from home?

Yes. The company must assume expenses related to the resources, equipment and tools necessary for the provision of services. These costs cannot be borne by the employee.

7. Does an employer have to grant an employee a specific work-from-home allowance? If so, under what conditions can an employer not pay such an allowance?

No, even if for simplification purposes it is usual practice to agree a fixed allowance as compensation of expenses. 

8. Is an employer responsible for ensuring proper working conditions from a health and safety perspective for employees who are working remotely?

Yes, employees rendering services from home must be entitled to the same health and safety level of protection as employees working on-site. However, risk assessment and planning of preventive activity should be adapted to specific remote working risks.

9. Are there any other specific obligations for the employer?

The employer has the obligation to track working time through the working time registry – without prejudice to the greater time flexibility that may be involved in the development of remote working.

Also, the employer should guarantee downtime. This implies, amongst others, limiting the use of work-based communication technologies during rest periods. Following consultation with the employees' representatives, companies must draw up an internal policy aimed at ensuring and raising awareness of the right to digital downtime.

10. Does an employee need to be insured to work from home?

Remote employees do not need to be covered by any specific insurance policy. 

That said, certain CBAs set forth collective insurance policies that companies must hire in favour of its employees. If that was the case, remote workers should be covered by the relevant insurance as the rest of employees. 

Yes, benefits arising from work-related accidents and illnesses apply if an accident occurs while the employee is working from home. However, to be considered a work accident, the event must take place while the employee is performing work-related services.

12. Is the employer permitted to charge employee claims for “working-from-home cost reimbursements” against his/her saved expenses (saved expenses could include the employee’s reduced costs for transportation, gasoline, lunches in restaurants and dry-cleaning charge)?

Before removing any expenses compensation paid by the company, it should be analysed if it possible to do so or if these amounts should be considered as salary which cannot be unilaterally removed. In the first scenario it would be possible to agree compensating these two amounts, but not in the second one. 

13. Are there any other specific obligations on the employee?

The employee should use IT devices provided by the company according to the company’s criteria for their use. 

14. Any other comments?

N/A