After months of negotiation and considering the unsuitability between the legal Telework regime, provided for in the Labour Code, and the increased needs that emerged due the Covid-19 pandemic, the Parliament approved several amendments to the labour legislation, which led to significant changes, which still depend on promulgation by the President of the Republic, in which case such amendments will come into force on the 1st working day after publication in the National Official journal (“Diário da República”).
To whom will the new telework regime apply?
Telework is now considered to be "the provision of work through the use of information and communication technologies in a regime of legal subordination of the employee to an employer, in a place not determined by the latter".
Furthermore, certain rules may apply to employees without legal subordination, but in a regime of economic dependence. The regime is also extended to central, regional and local public administration.
What are the formal requirements for an agreement between the employer and the employee?
The implementation of this regime always requires a written agreement, which may be included in the initial employment contract or be an amendment of such contract. Furthermore, the agreement must contain a range of information which is fundamental to the regulation of the legal relationship, namely the definition of the permanence regime or the alternation of periods of distance work and presence work; the place where the employee will habitually carry out his / her activity; the working hours; the activity to be performed; the remuneration, including complementary or accessory benefits; among others.
Can an agreement proposal be refused?
If the proposal is from the employer, the employee may freely refuse it, without any justification or subsequent consequences. If, on the other hand, the proposal is from the employee, the employer may refuse it, as long as it is done in writing and with justification.
What is the duration and termination regime of the teleworking agreement?
The teleworking agreement can be executed for a fixed term or for an indefinite term. In the first case, the agreement cannot exceed 6 months and is automatically renewed for equal periods, provided that the parties do not declare the contrary. In the second case, either party may terminate the agreement by written notice to the other party, which will produce effects on the 60th day thereafter.
What happens when the teleworking agreement ceases?
The employee has the right to resume the activity in a face-to-face regime, without prejudice to his or her category, seniority and any other rights provided for employees in a face-to-face regime.
Who is responsible for the equipment and the costs?
The employer. The employer will be responsible for providing the employee with all the tools and systems necessary to develop his/her professional activity. As for additional expenses (the increased energy costs, the network installed at the work place with a speed compatible with the service communication needs, as well as the maintenance of the same equipment and systems, which the employee did not have before), will be fully compensated by the employer. Such payment should take place right after the disbursement of the amount by the employee.
How will the employee's privacy be guaranteed?
Whenever the professional activity in a teleworking regime is developed at the employee's home, the visit of the employer to the workplace requires not only a 24 hour prior notice, but also the agreement of the employee. For this employer’s visit, the proportionality principle must be complied.
This visit must only have the purpose of controlling the work activity and must be carried out in the presence of the employee, during his/her working hours. Furthermore, the employer has the duty to refrain from contacting the employee during rest time ("right to disconnect"), except in force majeure cases.
Is the development of the activity in a teleworking regime an employee’s right?
It may be so in specific situations, in which the employer cannot oppose the employee's request, namely:
- Employee(s) victim(s) of domestic violence;
- Employees with children up to the age of 3, when this is compatible with the activity performed and the employer has the resources and means to do so;
- Employees who have children aged between 3 and 8 years old and who develop their activity in small, medium or large companies may also benefit from the telework regime. However, in order to do so, each parent must alternate, at most, every 6 months between the face-to-face regime and the telework regime. This right also covers single-parent families or families in which only one of the parents is able to perform his / her functions under this regime.
- Employees who have been recognized as non-main informal caregiver and provided that the necessary conditions are fulfilled (up to a maximum of 4 years).
