Contact: LeAnne Stefl
Effective 13 October 2020, employers in Spain with employees working from home are required to cover all the expenses associated with the computer hardware, tools, or furniture needed by the employees to perform work duties from a remote or home office location. According to Royal Decree Law No. 28/2020, published in the Official Journal (BOE) on 23 September 2020, the new legal framework for remote work (trabajo a distancia or teletrabajo) in Spain will be implemented in stages. The Royal Decree regulates all employees who work remotely 30% of the time within a period of 3 months. It is an attempt to guarantee the rights of employees working away from the regular workplace and to establish a set of regulations that can adapt to the changes brought about by the new coronavirus (COVID-19). Among others, the Royal Decree outlines the conditions under which employers and employees will be required to sign an underlying written agreement to set up a remote work arrangement. It also ensures the rights of remote employees to equal remuneration, working hours, job training, professional advancement, anti-discrimination, work-life balance, and to disconnect electronically from the workplace outside of regular business hours. Though employers and employees can take advantage of a 3-year transitional time window to implement the new regulations, the Royal Decree comes into effect 20 days after publication in the BOE, 13 October 2020.
Affected employers and employees
Both employers and employees in Spain are affected by the new regulations governing remote work starting on 13 October 2020, or after a mutually agreed 3-year transition period. However, the requirement for employers to cover the expenses incurred by their telecommuting employees applies to all employers as of 13 October 2020.
Scope of application
Royal Decree No. 28/2020 applies to all work performed away from the regular workplace. It makes a distinction between remote work (trabajo a distancia), a catch-all term, and telecommuting (teletrabajo), a subset of remote work performed exclusively online at a home office. The new regulations will apply to periods of remote work or telecommuting lasting for 3 months during which the employee has worked for a minimum of 30% of the workday away from the regular workplace (or the equivalent percentage of time based on their employment contract).
Royal Decree No. 28/2020: new legal framework for remote work in Spain
Effective 13 October 2020, employers in Spain are liable for the expenses incurred by employees working remotely. Per Royal Decree 28/2020, the rights of such employees will be equal to those working in-person at the workplace in terms of wages, work schedules, job training, professional advancement, anti-discrimination, and health and safety standards. Remote employees will also be entitled to disconnect from the workplace (desconexión digital) at the end of the workday.
As of 13 October 2020, employers are required to cover all the expenses associated with the computer hardware, tools, or furniture needed by employees to perform their work duties from a remote or home office location. The exact amount of compensation for such expenses can be stipulated either in the collective bargaining agreement (CBA) or in the written remote work agreement underlying all such work arrangements.
The new regulations apply when at least 30% of an employee’s total working hours are performed outside of the regular workplace within a 3-month period (or the equivalent percentage based on the total duration of the employment contract). The new regulations also guarantee a flexible work schedule and daily rest periods. However, employers are allowed to establish time windows during which the employee must be available online.
Remote work arrangements can be made on a purely voluntary basis and may be reversed by the employer or the employee according to the terms established by the collective bargaining agreement (CBA) or the remote work agreement. The terms of such an agreement can be reversed at any time by either party. The percentage of working hours that must be performed remotely can also be modified at any time. In addition, the CBA or the remote work agreement will determine how employees should be compensated for the expenses incurred while working remotely.
Finally, though employers are allowed to monitor the performance of remote employees, the Royal Decree does not clarify the mechanism or surveillance tools that can be used. The text of Royal Decree No. 28/2020 simply states that employers can adopt the necessary measures to ensure the correct performance of work duties as long as the employee’s dignity is preserved.
Significantly, the remote work setups that have been put in place as a result of Spain’s state of emergency related to COVID-19 (Royal Decree No. 8/2020) are not affected by the new regulations . However, employers are nonetheless required to provide employees with the resources and equipment they need to work remotely, as well as any maintenance costs, starting on 13 October 2020, regardless whether the original telecommuting setup began as a result of the COVID-19 pandemic or after the country lockdown.
Before COVID-19, there was a legal void in Spain regarding all forms of remote work. Employees working from a home office were largely regulated by the outdated Article 13 of the Workers’ Statute (Estatuto de los Trabajadores). According to a survey by Eurofound, about 28.5% of the Spanish workforce was working remotely in June and July 2020.
Employee expenses for remote work
According to Articles 11 and 12 of the Royal Decree, employers are required to furnish employees working remotely with the equipment and tools they need in order to perform their work duties. They are also required to compensate remote employees for any maintenance costs associated with such resources, as well as any costs incurred by the employee in the event of IT-related technical difficulties. Per Article 12 of the Royal Decree, the compensation mechanism to cover such expenses must be detailed in the company CBA.
CBA in remote work
According to the Royal Decree, collective bargaining agreements (CBAs) will play a key role in regulating remote work in Spain. Aside from determining how employees will be compensated for their home office expenses, the company CBA should define the duration and general conditions of remote work, as well as the minimum percentage of time that must be performed in person at the regular workplace. The CBA should also spell out how the terms of a remote work agreement can be modified or voided.
Remote work agreement
All remote work setups must be formalized via a written remote work agreement (acuerdo de trabajo a distancia) signed by employers and employees (or their representatives). The document should cover the following items:
- expenses incurred for resources, equipment, and tools
- compensation mechanism
- working hours and rules on online availability
- percentage of hours worked remotely
- address of the workplace and the remote work location
- notice periods if agreement is reversed
- mechanism for monitoring employees
- procedures in the event of technical difficulties
- data privacy and data protection mechanisms
- duration of remote work agreement
Such remote work agreements must be formalized within 3 months of the date on which the Royal Decree comes into effect. Failure to do so before the employee begins working remotely will be subject to penalties. A copy must be sent to the employee’s legal representatives and to the employment agency (Oficina de Empleo) within 10 days after the signature of the agreement. Any changes to the document will need to be approved by both the employer and the employee, and must be laid down in writing and forwarded to the employee’s representatives.
Royal Decree No. 28/2020 serves to enshrine the rights of employees working from home. Such employees are entitled to the same rights as their co-workers who are present at the regular workplace: equal remuneration, working conditions, anti-discrimination, and work-life balance provisions. In addition, employees working remotely will have the right to be compensated for all expenses incurred for equipment, tools, and other resources. They will have the right to adequate working hours, to the privacy of their personal data, to disconnect electronically from the workplace, and the right to flexible working hours. Finally, they are protected in their home office space by occupational health and safety standards. This may require employers to ensure that the remote workspace meets basic standards in order to minimize risk factors.
Monitoring of employees
According to the Royal Decree, employers are allowed to monitor the performance of remote employees within certain limits. For example, they are able to verify if remote employees are correctly performing their work duties as long as the terms of Spain’s Data Privacy Regulation (LOPGDD) are respected. However, employers are not allowed to install surveillance tools in the employee’s computer or hardware, as laid down in recent case law precedents.
Date of effect for Royal Decree No. 28/2020
A number of provisions in Royal Decree No. 28/2020 do not come into effect immediately. Instead, after publication in the Official Journal (BOE) on 23 September 2020, 14 transitional provisions (disposiciones transitorias) will govern the decree’s introduction. If the remote working arrangements are the result of COVID-19 and Royal Decree No. 8/2020 (17 March 2020), the new regulations do not apply immediately. However, according to Articles 11 and 12 of the Royal Decree, employers are required to cover the expenses incurred by employees in a home office starting on 13 October 2020.
In cases in which the CBA or a company’s previous remote work agreement does not have an expiration date, the regulations in Royal Decree No. 28/2020 will apply 1 year after publication in the BOE (23 September 2021), unless the employer and the employee agree to extend their current agreement up to a maximum period of 3 years. Otherwise, the new regulations come into effect on 13 October 2020.