New teleworking regime in Portugal

The teleworking regime in Portugal has new rules as of January 1, 2022. Indeed, Law no. 83/2021, of December 6 has already been published, amending the Portuguese Labour Code in this theme, as well as the system for repairing accidents at work and occupational diseases. This amendment to labour legislation also establishes a new duty to employers: the duty to abstain from contacting employees in certain situations.

We hereby present the main changes resulting from this new law:

A new telework definition is established. Now, telework is qualified as the provision of work under the legal subordination of the employee to an employer, in a location not determined by this last one, using information and communication technologies.

The requirement for a written agreement to establish the teleworking regime is maintained, but the mandatory elements that must be included in this agreement are expanded, including the frequency and manner of carrying out personal contacts, working hours, the place where the employee will perform usually the work (which will be considered, for all legal purposes, the place of work, and which may be changed by agreement between the parties) and the employee's remuneration.

If the employer presents a proposal to employee for the performance of functions under a teleworking regime, the employee’s opposition does not have to be justified, and the refusal cannot constitute a cause of dismissal or grounds for the application of any sanction. On the other hand, if the employee requests to work under this regime, and if the activity can be performed, the refusal by the employer must be in writing referring the reasons of the refusal.

The employer is allowed to define, by internal regulation, and in compliance with the General Regulation on Data Protection, the activities, and conditions under which the adoption of teleworking in the company may occur. The regulation should be published.

New rules are also established regarding the duration of the teleworking agreement. The agreement can be entered into for a fixed duration (in which case it cannot exceed 6 months, automatically renewing itself for equal periods, if neither party declares in writing, up to 15 days before its expiration, that it does not intend to renew) or indefinitely (in which case either party may terminate it by written communication, which will take effect on the 60th day after that).

The employer is responsible for providing the employee with the equipment and systems necessary to carry out the work and for the employee-employer interaction, and the agreement to enter specify whether they are directly supplied or purchased by the employee, with the employer's agreement on their characteristics and prices. All additional expenses that the employee is proven to support as a direct consequence of the acquisition or use of the equipment and computer or telematic systems necessary to carry out the work, must be fully compensated by the employer, including the increase in energy costs and the network installed on site at a speed compatible with the service communication needs, as well as the maintenance costs of the same equipment and systems.

Additionally, the new regime establishes the equality of treatment between teleworking employees and other employees, also regarding rest periods and access to representative structures of employees, including the right to receive, at least, the remuneration equivalent to the who would earn in person, with the same category and identical functions.

It is determined that, with at least, 24 hours prior notice, and if the employee agrees, for a visit to the workplace whenever teleworking is carried out at the employee's home. In any case, the capture and use of image, sound, writing, history, or the use of other means of control that may affect the employee's right to privacy is prohibited.

Without prejudice to the existing rules regarding employees with children up to 3 years old, new rules are established for workers with children aged up to 8 years. Thus, these employees (and except in companies with less than 10 employees) are entitled to carry out the activity in a teleworking regime, when this is compatible with the activity performed and the employer has the resources and means for this purpose, in the following situations:

a) In cases where both parents meet the conditions to exercise the activity in a telework regime, if this is exercised by both in successive periods of equal duration within a maximum reference period of 12 months;

b) Single-parent families or situations in which only one of the parents, demonstrably, meets the conditions for the exercise of the activity in a telework regime.

On the other hand, in the case of employees who have been recognized as informal non-primary caregivers, they are now entitled to exercise the activity in a teleworking regime, for a maximum period of 4 consecutive or interpolated years, upon proof of such status, when compatible with the activity performed and the employer has the resources and means to do so. In any case, the employer may object to the exercise of this right.

Distance work meetings, as well as tasks that, by their nature, must be carried out at precise times and in conjunction with other employees, must take place within working hours and should preferably be scheduled 24 hours in advance.

Employees are required to appear at the company's premises or at another place appointed by the employer, for meetings, training sessions and other situations that require physical presence, for which they have been called at least 24 hours in advance. In this case, the employer bears the cost of these trips, to the extent that, eventually, it exceeds the normal cost of transport between the employee’s home and the place where he would normally work in person.

The employer must promote health examinations at work before the implementation of the teleworking regime and, subsequently, annual examinations to assess the employee's physical and mental aptitude for the exercise of the activity, its effects, and the conditions in which it is provided in its health, as well as preventive measures that prove to be adequate.

The employee must provide access to the place where he/she works to the professionals appointed by the employer who, under the terms of the law, are responsible for the assessment and control of safety and health conditions at work, within a previously agreed period, between 9 am and at 7 pm, within working hours.

The legal regime for the repair of accidents at work and occupational diseases applies to the situations of teleworking, considering the place of work as the place chosen by the employee carry out his activity and working time whenever he is demonstrably providing their work to the employer (which should be mentioned in the agreement implementing the telework regime).

Finally, a duty to abstain from contact is also established. Thus, the employer must refrain from contacting the employee during the rest period, except in situations of force majeure. Failure to comply with this obligation constitutes a serious administrative offence. Additionally, for the purposes of article 25 of the Labour Code, any less favourable treatment given to an employee, namely in terms of working conditions and career progression, by virtue of exercising the right to rest period constitutes a discriminatory action, as mentioned above.

The Labour Law Depatment of Belzuz Abogados S.L.P. – Sucursal em Portugal is available to provide any additional information on the teleworking regime.

 

Belzuz Abogados SLP

This publication contains general information not constitute a professional opinion or legal advice. © Belzuz SLP, all rights are reserved. Exploitation, reproduction, distribution, public communication and transformation all or part of this work, without written permission is prohibited Belzuz, SLP.

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