Labor and Immigration Department

CLIENT ALERT | ON JULY 1st, 2020, THE DEADLINE ESTABLISHED BY THE LAW 21.220 WILL BE MET FOR EMPLOYERS TO COMPLY WITH ITS TERMS, IN TERMS OF DISTANCE WORK AND TELEWORKING

Labor and Immigration Department

 

On July 1st, 2020, the deadline for companies and employers to be in full compliance with the Law 21.220, commonly referred to as the Teleworking Law, is reached. This law introduced a chapter in the Labor Code on distance work and telework.

Employers had a period of 3 months, counting from the entry into force of the Law (April 2020), to comply with the terms set by the Law, in respect of workers who were already providing remote services or teleworking. This has led to a significant increase in consultations from employer clients mainly regarding: /i/ formalities to be fulfilled, /ii/ who should pay for its implementation, and /iii/ regarding the right to disconnection.

In order to avoid fines and be subject to inspections by the Labor Inspectorate, we will indicate below the most critical points of the Law and how they should be regularized as of July 1 of this year:

1. Formalities

a. Written

In order to implement teleworking or distance work, this must be stipulated by written, either in the employment contract, if we are talking about a new worker, or in an annex to the contract, if we are talking about a worker with an existing employment contract. In addition, either the employment contract or the annex must contain certain minimum mentions, which are those listed in the Law.

If this requirement is not met, the company could be exposed to the following sanctions:

  • In the case of a new employment contract, its failure to be recorded in a deed will result in a fine of between 1 and 15 UTM for each worker and, in addition, the stipulations of the contract declared by the worker will be presumed to be legally true.
  • In the event that the employment relationship is already in effect and this agreement is not recorded, it would imply a fine for tax benefits ranging from 1 to 60 UTM for each worker.
  • In addition, if the document does not contain the minimum mentions, it would imply a fine for tax benefit ranging from 1 to 40 UTM.

b. Register

The respective contract or annex of telework or distance work must be registered with the Directorate of Labor within 15 days, counting from the subscription of the contract, which may be done electronically.

If this registration is not complied with, the employer may be exposed to a fine for tax benefits ranging from 1 to 60 UTM for each worker.

 

2. Costs of implementing this Law

One of the problems in implementing this law, which is a consequence of the pandemic, is that it has had to be used massively and in a very short period of time.

In this regard, it is very important to note that the equipment, tools and materials for remote work or telework (including personal protection items) must be provided and paid for by the employer. Likewise, the costs of operation, functioning, maintenance and repair of these will be borne by the employer.

The above implies that the employer must provide the computers, printers and any other implements necessary to carry out the work assigned. Likewise, if any system must be incorporated to the computer or improve the broadband in the worker’s home, it will be the employer’s cost, which will not constitute remuneration for the worker.

If this obligation is not complied with, the employer may be exposed to a fine for tax benefits ranging from 1 to 60 UTM.

 

3. Security Measures

The employer must inform the worker of the conditions and safety elements that he must comply with in his job, and he must ensure that these conditions are met in accordance with the provisions of article 184 of the Labor Code.

 

4. Right to Disconnect

The Law has established the right to disconnect the worker for at least 12 continuous hours in a 24-hour period, regardless of whether the worker must comply with a working day or not. This means that the employer cannot establish communications or issue orders or other requirements during this period. The idea is to ensure absolute rest for the worker.

This time of disconnection cannot be reduced even with the consent of the worker, and any clause that tries to limit it or divide it is null and void.

No explicit measures have been established to make the right to disconnection effective; however, in our opinion, this could be implemented by blocking corporate emails or servers during this period of time, among other technological measures that should be implemented by suitable professionals.

If the employer does not respect this right to disconnection, the Labor Inspector is empowered to impose a fine for tax benefits ranging from 1 to 60 UTM.

This Client Alert does not represent a legal opinion or recommendation and is for information purposes only.  Any doubts or queries regarding its content, please address them to the contact persons indicated in this report.