Key points of the Spanish Royal Decree-Law 28/2020 on remote working

On-site work and remote work

The Law differentiates between what is considered remote work and on-site work:

• Remote work: the work activity which is carried out in the worker's home or in the place chosen by the worker, during all or part of the working day, on a regular basis.
• Teleworking: remote working carried out exclusively or predominantly using computer, telematic and telecommunication means and systems.
• On-site work: work carried out at the workplace or at a place determined by the employer.

It shall be understood to be usual remote work when it is provided, within a reference period of three months, at least 30 per cent of the working hours, or the equivalent proportional percentage according to the duration of the employment contract. Otherwise, it shall be considered on-site work and this regulation will not apply.

Written agreement

The remote working agreement must be in writing. Companies with employees who are currently working remotely must formalize the remote working agreement by 23 December 2020 (three months from publication). The agreement must include the start and end of the working day, the periods of activity and the time for activating and deactivating equipment.

The costs involved in remote work are borne by the company

The Law only refers to the "tools, means, equipment and consumables" required by the worker for remote working. Where appropriate, collective bargaining shall establish the form of compensation for the expenses incurred by the worker in this form of remote work, if they exist and have not already been compensated.

Voluntary and Reversible

The new regulation guarantees the right of the worker to return to work on-site. Also, remote workers will have priority for new jobs that are totally or partially performed on-site.

Equal rights between on-site and remote workers

The Law guarantees the equal rights between on-site and remote workers and the same total remuneration among workers

Employment contracts concluded with minors and in training and apprenticeship contracts

The remote working agreement must guarantee at least fifty per cent of on-site work.

Right to flexible hours

The worker may alter the working hours, respecting the work and rest regulations and the limits established in the remote working agreement signed with the company.

Disciplinary regime

There is no room for objective dismissal due to lack of adaptation to the remote working situation. Likewise, the refusal of the worker to be a remote worker, as well as the exercise of reversibility to work on-site, will not be valid grounds for the termination of the employment relationship or the substantial modification of the working conditions.

Equality between men and women in on-site and remote working

Promotion of co-responsibility between women and men. Companies must take into account the special features of remote working, especially teleworking, in the design and application of measures against sexual harassment, harassment on the grounds of sex, harassment for discriminatory reasons and harassment at work.

Equal access to and training in remote working shall be guaranteed.

Health & Safety

Employers must take into account the characteristic risks of remote work (psychosocial, ergonomic and organisational factors, etc.) for the evaluation of risks and the planning of the preventive activity.

Digital switch-off

Workers shall have the right to disconnect outside working hours. The employer must guarantee the right to switch-off, limiting the use of remote working means during rest hours and respecting the maximum length of the working day.

Privacy and data protection

The employer may not demand the installation of programs on devices owned by the worker, nor require the use of private computers for teleworking. Collective bargaining may develop these aspects and establish the criteria for the use of digital devices, respecting, in any case, the minimum standards of protection of the worker's privacy.

Means of control of the activity

The employer may adopt the measures it deems most appropriate for surveillance and control to verify compliance by the worker with his/her work obligations and duties.

Collective rights

The employer must guarantee the communication of remote workers with workers' representatives and the access to activities organised by them. All other rights of remote workers of collective nature must be guaranteed. The company must provide the necessary means, including access to communications and electronic addresses, and the implementation of a virtual notice board.

Remote work as a measure of health containment derived from the COVID-19

Ordinary labour regulations will continue to be applicable when remote work is implemented exceptionally as a consequence of the pandemic and/or as a consequence of the health containment measures derived from the COVID-19, and as long as these are maintained.

In any case, companies will be obliged to provide to workers the means, equipment, tools and consumables required for the development of remote work.

Penalty regime

Failure to formalize the remote working agreement in writing is considered a serious offence, punishable with a fine of between 626 and 6,250 euros.

Entry into force

Royal Decree-Law 28/2020 will come into force 20 days after its publication in the "Official State Gazette" (i.e. on 13 October 2020).