Mandatory teleworking: from illustrious stranger to best friend?

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The teleworking regime enshrined in articles 165 to 170 of the Labour Code was, before the Covid-19 pandemic, practically unknown to Portuguese workers and employers, given that it was a regime that was rarely considered in the definition of work provision. It was enough to ask in a professional or personal circle if they knew anyone who was teleworking, and the answer immediately showed this lack of knowledge.

However, even before this pandemic, there had been a noticeable increase in the adoption of teleworking. In this sense, and according to the National Statistics Institute (INE), in the second quarter of 2015 there were around 68,300 workers teleworking, rising to 120,700 in the second quarter of 2019 (almost double in four years).
This trend continues to grow, as, according to the INE, in the second quarter of 2020, we had around 1 million workers in mandatory teleworking, having seen a growth of 23.1% in one year, with the pandemic associated with COVID-19 being the main driver of this growth.

On the other hand, mandatory teleworking has been in the spotlight in jordan whatsapp number database months, being widely discussed in the media as a result of the legislation that has been approved and that touches on this topic. See Resolution of the Council of Ministers No. 92-A/2020, of 02-11 , which in art.º 28.º, n.º 10 determined the mandatory adoption of the teleworking regime, whenever the functions performed allow it, in the 121 municipalities most affected by COVID, thus adding to the three municipalities where the teleworking regime was already mandatory since 23/10/2020 (Felgueiras, Lousada and Paços de Ferreira).

Decree -Law No. 94-A/2020, of 11/03, added an article on mandatory teleworking to Decree-Law No. 79-A/2020, of October 01 , which established "an exceptional and transitory regime for reorganizing work and minimizing the risks of transmission of COVID-19 disease infection within the scope of labor relations”.



Mandatory teleworking regime for those who are able to do so
Article 5-A was added to the aforementioned legislation, implementing the mandatory teleworking regime . Therefore, for this obligation to apply, the functions in question must allow it and the employee must have the conditions to perform them, without any written agreement between the employer and the employee being necessary.

If the employer believes that the conditions are not met, that is, if he believes that teleworking is incompatible with the employee's duties or that the employee does not have the appropriate technical conditions to carry out mandatory teleworking, he must communicate his decision to the employee in writing and with reasons , and must also demonstrate this situation.

It is expected that, in the face of such a communication, the worker may, within three working days following the employer's communication, request the Working Conditions Authority (ACT) to verify the legality of that decision, with the ACT having to decide within five working days. In this verification, the ACT will take into account, for example, the activity for which the worker was hired and the previous performance of the activity under a teleworking arrangement or through other means of providing remote work.

It is the employer's responsibility to provide the work and communication equipment necessary for the workers covered to work under mandatory teleworking arrangements . However, when this is not possible, teleworking may be carried out using the means that the worker has, with the employer being responsible for the appropriate programming and adaptation to the needs inherent in teleworking, for which the worker's consent is required.

The employee must inform the employer in writing of the reasons for his/her inability to telework if he/she does not have the conditions to perform his/her duties under this regime, in particular because he/she does not have adequate technical or housing conditions.



Regulation finally clarifies conditions for mandatory teleworking
This diploma also clarifies some points that had not been fully clarified until now, namely:



teleworking workers have the same rights and duties as other workers ;
there is no reduction in remuneration, under the terms provided for in the Labor Code or in the applicable collective regulation instrument;
there is no change to the limits of the normal working period and other working conditions, safety and health at work;
there is no limitation on the right to compensation for damages arising from an accident at work or occupational disease ;
the right to receive the meal allowance already due to you is maintained .


It should be noted that the legislator excluded from the mandatory teleworking requirement workers in essential services covered by Article 10 of Decree-Law No. 10-A/2020 of 13 March, namely healthcare professionals, security and emergency services and forces, including volunteer firefighters, and armed forces, workers in essential public services, management and maintenance of essential infrastructures, as well as other essential services subject to mobilisation for service or readiness. Workers integrated into the establishments referred to in Article 2.3 of the aforementioned DL are also excluded.

Now, the fact that mandatory teleworking is under the spotlight and that it is, in our opinion, a strong ally in the fight against the spread of the virus, allowing the country to continue working, has led to people starting to learn more about and debate this regime.