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Spain: Preparing for the return to work and the "next normal"

07 April 2021
Our employment experts in Spain answer key questions in relation to working from home and the future world of work.
In response to the pandemic, restrictions have been implemented internationally, often including the requirement to work from home where possible. As the vaccination programme is underway and restrictions are cautiously reviewed, we consider what the future world of work may look like and whether home working is here to stay.  
Do employees have a right to continue working from home after the lockdown restrictions have lifted?

No, unless expressly agreed. Originally, this right/obligation -not telework itself, which already existed- was conceived as a tool that made possible the continuity of business activity during the state of alarm, for companies and workers in those sectors that were not included in the essential activities, which were the only ones whose activity had not been interrupted. It was also conceived as a measure to avoid or minimise the risk of contagion in those cases in which, even in companies in sectors considered essential, the specific post allowed remote working.

Therefore, once the state of alert and the restrictions related to the containment of the pandemic are over, teleworking has to be on a voluntary basis and by mutual agreement, in accordance with the legislation that has been passed to this effect.

Should employers have a policy dealing with home working and what are the key points?

Yes, although it is necessary to differentiate between two types of teleworking: that which occupies less than 30% of the worker's working day and that which exceeds this percentage, since depending on this specific figure, it will be governed either by company policy or by Royal Decree-Law 28/2020 of 22 September. Based on this, we can differentiate and highlight the following points for each specific case:

a) Remote working is a percentage of less than 30%, in which case it will be governed by the policy developed by the company. The company shall draw up a specific procedure ,so that the worker who so wishes, can request this remote working under the conditions set by the company, which may reserve the final concession of this enjoyment.

b) Remote working that exceeds 30% of the working day, in which case, it will be governed by the provisions of Royal Decree-Law 28/2020 of 22 September. In this case, we can highlight the following main characteristics.

  • It is voluntary. An agreement must be reached between the company and the worker to carry out the work remotely.
  • It is reversible by both parties, it can be agreed to return to on-site work. It is essential that there is an agreement to return to face-to-face work.
  • The company must compensate the worker for the expenses incurred as a result of the above.
  • Workers must be provided with the appropriate equipment and material means to carry out their work
Can an employer require employees to work entirely or predominantly from home? Is employee consent required? What are the main risks?

Only during the state of alarm (basically the first period of the pandemic) could the employer force workers to telework, precisely because it was one of the main measures to contain the pandemic.  Not travelling to the workplace also meant that the health of the workers was being protected - and the way in which companies could continue with their activity, at the time when the government decreed the stoppage of activity, unless it could be done through teleworking. With the implementation of teleworking, unnecessary travel was (and still is) avoided, avoiding risks of contagion to workers.  Only during this time, and if possible for the specific job to be performed, the company has been able to require workers to carry out their professional duties during the entire working day through teleworking.

Apart from the above assumption, on the basis that remote working has a specific regulation, which came into force last September 2020, the company will not be able to force the worker to telework predominantly or entirely from home, since it is necessary to have a specific agreement to that effect. 

However, there could be another specific case in which the employer could require the employee to work from home, if there is a situation of risk of contagion for the staff or the employee.  It is important to note that this would be an obligation that would be temporary in duration, as the cause that originates it is temporary and specific. So this requirement is limited in time.

Do employees have any entitlement to allowances/benefits if required to work from home?

Yes.  In the Royal Decree-law 28/2020, two different types of compensation are expressly regulated. 

On the one hand, it establishes that the employee must be provided by the company with all the devices, tools, and equipment necessary to carry out his or her professional duties in remote work.

On the other hand, it also states that a payment and compensation of expenses must be paid, so that the remote working does not entail for the employee the assumption of costs of tools, materials and others associated with the development of remote working.

In the latter case, unless the applicable collective bargaining agreement regulates how expenses may be compensated, the amount of compensation must be agreed between the employer and the employee.

What are the key trends in relation to home working?

Even though there is not much data on the main trends in homeworking, there are some studies that indicate that there will continue to be an increase or maintenance of the number of people teleworking.

The way in which teleworking is regulated or permitted will differ according to the types of company involved, the size of the company and the activity to be carried out.

 Many companies tend to have a mixed model, so that it is a matter of flexible working hours that have to be carried out either in person or remotely. This model makes it possible to: [i] to maintain a certain socialisation of workers and corporate culture, [ii]to make the working day more flexible, and therefore to achieve a better work-life balance.

Companies that are committed to having an activity that allows for full-time teleworking. Normally this type of company is of an eminently technological nature, as they are the ones that not only have the tools and facilities that allow this type of work, but also make teleworking part of their culture.

When establishing homeworking (mainly teleworking) policies, companies will normally develop them in such a way that the terms under which teleworking is to be carried out are fixed, regardless of whether it is predominantly teleworking or not. This would allow the company to save costs, as it would not be obliged to agree on financial compensation, but would do so on the basis previously stated by the company, determined under the criteria and guidelines that the company considers to be most economically profitable.

Author: Olga Cornejo 

Get an insight into the current situation in other jurisdictions from our global legal team.


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