On 24 March a Law was introduced that modifies the Labor Code regarding remote working to provide specific rules and requirements in this respect. The Law is hereinafter referred to as the LTD (in Spanish, “Ley de Trabajo a Distancia”).
The LTD adds the new chapter IX to Title II of Book I of the Labor Code “On Remote Work and Teleworking”, creating the new articles 152 quater G to 152 quater O.
This document summarizes the following most important aspects of the new regulations:
In which an employee carries out their duties, either totally or partially, from their home or any other location other than the company’s establishments or installations.
Remote Work carried out using technological means or where services rendered should be reported through technological means.
The right granted to remote workers to freely distribute their hours or to be excluded from a specific work schedule, which guarantees that they will not be obliged to respond to communications, orders or other requirements of the employer, for at least twelve continuous hours in a twenty-four hour period. It also applies to all the rest days, permits, or holidays of the remote workers.
The new regulation establishes the following distinctions:
The LTD provides that work to be carried out either partially or completely via Remote Work or Teleworking, at the parties’ agreement being able to agree a combined working between remote or face-to-face work (art. 152 quater J). The LTD does not establish specific requirements or rules for the specific way in which work can be combined, which is left freely available to the parties, provided that this does not result in impairment to the employee. Additionally, partial Remote Work or Teleworking allows for the employee to choose a combination of face-to-face and distance working days, notifying their employer at least one week in advance.
The LTD allows for the parties to establish where the Remote Work or Teleworking will be carried out, which may be the domicile of the worker or another place. The regulation also allows for the worker to freely choose where they will carry out their work, in cases where this is appropriate (art. 152 quater H). However, any work which is carried out in establishments or infrastructure provided by the employer is not considered to be Remote Work or Teleworking.
The LTD establishes that Remote Work or Teleworking will, in principle, be subject to the general rules on working hours of the Labor Code. The new legislation proposes three alternatives for working hours:
i. Fixed working day. In this modality, the worker will comply with his working hours in accordance with the general rules. The employer must implement, at its cost, a reliable mechanism for recording compliance with Remote Work hours, by using systems duly authorized by the Labor Directorate.
ii. Freely distributed working day. If the nature of the services provided permits, the parties may agree that the worker freely distribute his workday according to his needs, respecting the maximum limits of daily and weekly hours. In this case, the control mechanism indicated in the previous point would also apply.
iii. Exclusion of time limit. The parties may agree that the worker is excluded from the limitation of weekly working hours, in application of the provisions of article 22, subsection 4 of the Labor Code. However, the new norm establishes that it will be presumed, legally, that the worker is affected by ordinary working hours if the employer “exercises functional supervision or control over the manner and opportunity in which the work is carried out” (art. 152 quater J subsection 4).
Article 152 quater J establishes the Right to Disconnection, which has two dimensions:
The first applies, in accordance with the legal text, for workers who freely distribute their hours or those excluded from the time limit, and must be a minimum of 12 continuous hours for each 24-hour period. The Right to Disconnection is defined in LTD as a guarantee for the worker, and exempts him from a series of labor obligations:
i. Response to employer communications;
ii. Response to employer orders;
iii. Response to “other requirements”, which are not defined by LTD.
The second dimension of the Right to Disconnection is established in more general terms, applicable to all types of workers subject to Remote Work, stating that “in no case may the employer establish communications or formulate orders or other requirements on days off or annual holidays”.
This Right to Disconnection is an innovation in the Chilean Labor Code, and we believe that its application, although it is found in the Chapter on Remote Work and Teleworking, is likely to gradually be extended in addition as a guarantee to workers who fulfil their obligations in person according to the general rules.
The employer will be responsible for providing the employee with the appropriate equipment required to work remotely, including personal protection elements. The employee is not required to use their own property. Similarly, the costs of maintaining and operating the required equipment will be covered by the employer.
The new art. 152 quater G provides for the parties to agree on whether the employees duties will be carried out remotely either at the beginning of the employment relationship, by means of the employment contract, or during its validity, by means of an annex to the existing contract.
The agreement in which Remote Work or Teleworking is agreed may not imply an impairment for the worker, especially in terms of remuneration. Therefore, insofar as they are compatible, the latter will maintain all the rights guaranteed by the Labor Code.
When Remote Work or Teleworking is agreed, either through the employment contract or through a contract annex, this must be registered electronically with the Labor Directorate within 15 days of the agreement being made (art. 152 quater O).
In order to end a Remote Work or Teleworking agreement if it was agreed when an employment relationship was established, this must be carried out by mutual agreement through an annex to the employment contract. In order to end a Remote Work or Teleworking agreement if it was agreed after the employment relationship was established, the law grants either party the right to unilaterally end the agreement, which must be notified in writing, with at least thirty days notice.
The clause referring to an agreement to carry out duties through Remote Work or Teleworking, by express provision of the law and in addition to the general requirements established in article 10 of the Labor Code, must include the following:
i. Express indication of having agreed on Remote Work or Teleworking, specifying whether this will be total or partial, and if it is partial, the way in which face-to-face work and distance work will be combined;
ii. The location where the employee’s duties will be carried out or whether this will be freely determined by the employee;
iii. The duration for which duties will be performed remotely or whether this will be indefinite;
iv. The way in which the employer will supervise or control the performance of the employees duties;
v. Express indication of an agreement that the employee may freely distribute their working day, or whether they will be excluded from the limitation of working hours;
vi. The disconnection time, which, as indicated, may in no case be less than 12 continuous hours for every 24 hours.
Articles 152 quater M and 152 quater N establish the following obligations that employers must fulfil in relation to the health and safety of the remote worker, despite the fact that the services are not provided within their dependencies:
i. Inform the employee of the health and safety conditions that must be met at their workplace;
ii. Ensure compliance with these conditions, in accordance with the general duty of protection of the employer, contained in article 184 of the Labor Code;
iii. Inform the worker in writing of the risks inherent in their work and of the preventive measures that are required;
iv. Before starting Remote Work or Teleworking, provide training for workers in the main health and safety measures that must be observed. Such training may be carried out by the employer directly, or through the administrative agencies of Law 16.744.
The LTD establishes two obligations for the employer in this regard:
i. First, the employer must inform the worker in writing of the existence or non-existence of unions in the company, when an employment relationship is established. Similarly, the employer must inform remote workers when a union is formed, within 10 days of a communication by the union’s assembly meeting to the employer, under the terms of art. 225 of the Labor Code. (art. 152 quater N final paragraph).
ii. The employer must guarantee the worker’s access to the company’s facilities, in order to participate in the collective activities that are carried out, and they will be responsible for the transportation costs of the workers.
The LTD establishes two transitory articles regarding its implementation. First, the rule itself establishes that its provisions will enter into force on the first day of the month following its publication in the Diario Oficial. which meant that it entered into force on April 1, 2020.
Notwithstanding the foregoing, the first transitory article provides that, in the case of those companies whose employees already perform their duties by Remote Work or Teleworking, they will have a period of three months from the entry into force of the law to make the necessary adjustments to comply with the new conditions of the LTD, through the subscription of the respective annexes of the employment contract.
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