As a result of the COVID-19 pandemic and measures put in place in response, countries around the world – including Portugal – have adopted new innovations in the area of employment in a bid to keep their workers safe and productive. One such innovation is work from home or telework.
More than a year after the pandemic began, telework work has proven so effective, many believe it will become a fixture of our post-pandemic future. But remote work raises a host of legal and administrative challenges. This article – based on the 11 May 2021 webinar The Future is Now: The New World of Work in Portugal and hosted by legal experts Susana Afonso and Sara Chiappe Nolasco with CMS Portugal – explores the impact of telework in Portugal for both workers and companies.
Portugal undergoes an employment paradigm shift
According to legal expert Sara Chiappe Nolasco, a Senior Associate with CMS Portugal, the pandemic has left an indelible mark on the structure of employment in Portugal.
"Today as a result of the pandemic we can say that telework is the most common way of conducting work", explains Nolasco who reports that up to 60% of Portugal's business community is using remote employment.
This shift is the result of the temporary measures (e.g. quarantine and social-distancing orders) introduced by the Portuguese government in the wake of its declaration of a State of Calamity in response to the pandemic. But telework has also expanded in step with a change in attitude in the business community, which sees telework as an attractive employment arrangement.
Telework in Portugal has gone through different phases. In the first phase, employers could unilaterally instruct workers to accept a remote or telework relationship.
In the second phase, the government – in a bid to reduce Portugal's national infection levels – made teleworking mandatory for those enterprises able to continue operations under this arrangement. In both exceptional cases, a specific agreement between the employer and employee was not necessary.
Despite the popularity of telework, this form of employment is not possible for all companies. So what can a company do to protect the health of employees if teleworking is not an option?
Cases where telework is impossible
Many companies (e.g. consultancies, IT firms, legal, financial and information service companies, etc.) have been able to make the transition to telework. Other companies (e.g. manufacturers) are not able adapt their operations to the teleworking model, compelling them to adopt other measures to protect their employees and continue operations. These protection measures include:
- The creation of small stable work teams that operate in a "staggered working regime" that minimises personal contact;
- Alternating breaks to avoid personal contact between employees in rest and meal areas;
- The use of personal protective equipment (e.g. masks) in the workplace, particularly "in situations where physical distancing is impractical due to the nature of the activity."
Teleworkers: their rights and duties
As stated, a majority of Portugal's workers are now working remotely. But how does this relationship affect their rights and do they have any special obligations?
Basically, teleworkers in Portugal enjoy the same rights as regular employees in terms of working hours, health and safety regulations and insurance compensation for work-related accidents. Employees cannot have their salaries reduced as a result of the telework relationship, and for the period of the State of Calamity they are still entitled to benefits such as meal allowances.
For remote employees to perform their duties, they must have access to the same specialised office equipment (e.g. computers, laptops, printers, smartphones, etc.) they used in the regular office, raising the question: who is responsible for providing these tools – the teleworker or the employer?
Portuguese regulations are flexible in this matter. Although it is an employer's responsibility to provide all the equipment necessary for a teleworker to get the job done, the employee can be permitted to use personal equipment. In either case, the employer must liaise with the teleworker and make any and all arrangements necessary to ensure that worker has the appropriate tools.
Telework and the Labour Code
To properly understand the scope of remote employment in Portugal, it is important to understand how it is defined in the Portuguese Labour Code. Basically, the Code defines telework as the provision of work at a distance away from an employer's premises, but under the "legal subordination" of the employer (i.e. the employer directs and oversees the teleworker's activities).
Under the Code, teleworkers do not have to conduct work at home (an alternative office can be used), but in practice most teleworkers operate from their personal residences.
In normal circumstances, both the employer and employee must agree to a teleworking relationship and sign a written contract outlining this arrangement. (During an exceptional and temporary regime, however, such as the current State of Calamity surrounding the COVID-19 pandemic, telework can be assigned unilaterally by the employer or requested by the employee without the need for a written agreement).
In addition, employees can unilaterally create a telework relationship (without an agreement) if:
- they are victims of domestic violence; or
- they are caring for a child three years of age or younger.
When an agreement has been achieved between an employer and teleworker, the contract must by law contain the following provisions:
- The name and official domiciles of the parties along with their signatures.
- The activity to be carried out by the teleworker, and the remuneration to be received for performing these duties.
- The teleworker's daily working hours and weekly employment schedule.
- The company department the teleworker is affiliated with and the name of a supervisor or company contact the teleworker should be in communication with.
- The provision of working tools and equipment (e.g. will equipment be provided by the company or will the employee use personal equipment?) along with details on how these tools will be installed and maintained and how the employee will be remunerated for "paying the inherent costs of consumption and use". (Note that if the contract does not include such a provision, the employer is expected to provide and install the equipment and incur all costs. In terms of other expenses, employers must pay for a teleworker's WIFI installation costs, but it is still not clear whether companies are required to pay for the monthly usage fees).
- If the period designated for teleworking is shorter than the duration of the employment contract, the employee's duties after teleworking has been concluded must be specified.
Who is eligible?
Portugal recognises two forms of telework: internal telework and external telework.
To become either an internal or external teleworker, an employee must be already established at a company or be newly hired.
But to avoid the prolonged isolation and the negative affect this may have the worker's career, a teleworker's contact cannot exceed three years.
Health and safety
As stated, teleworkers enjoy the same health-and-safety protections as regular employees and are eligible to receive compensation should they suffer a work-related accident or illness.
One of the most hotly debated questions surrounding teleworking in Portugal and across Europe is: how can teleworkers be supervised without violating data-protection and personal-privacy laws.
When directing the activities of a teleworker, employers are obliged to:
- Do everything possible to ensure that the teleworker's professional "conditions" are healthy and conducive to effective work;
- Respect the employee's privacy;
- Respect the employee's personal time after working hours are concluded.
Employers can pay visits to a teleworkers home or alternate office, but these visits must:
- Concern the worker's professional duties or the maintenance of equipment;
- Be conducted between 9 am and 7 pm on a given work day;
- Involve a meeting with the employee or a designated representative.
The employer cannot conduct "remote surveillance" (e.g. video monitoring, etc.) since this would be a violation of the employee's personal privacy.
According to labour-law expert Susana Afonso, a Partner with CMS Portugal, teleworking has become popular in Portugal because of the benefits it affords employees, employers and society as a whole.
For employees, the advantages of teleworking includes:
- Eliminating the costs in money and time of daily commutes;
- Reduction in stress;
- The ability to create a positive and happy working environment;
- The ability to create a work schedule conducive to the employee's life and other responsibilities (e.g. family);
- More autonomy on the job.
For employers, teleworking also has its benefits, including the ability to:
- Reduce operational costs;
- Better manage office space;
- Exercise greater management flexibility.
And the benefits of teleworking also apply to society as a whole when the environmental advantages of reduced traffic and pollution are considered. In fact, teleworking frees up urban centres for other uses and reduces city congestion.
But teleworking also has its costs. Employees must deal with isolation, which can have both personal and professional ramifications.
Also, home-based workers may encounter difficulties in separating their professional and private lives compounded by the fact that Portugal has not yet regulated the same worker 'right to disconnect' regulation that exists in other countries.
Lastly, the drawbacks of this relationship for employers include difficulties in managing, supervising and delegating work to remote employees. Clearly, telework is truly a new paradigm with challenges that all parties involved must work to solve.
Employers, Employees and COVID-19
The pandemic has raised other vital issues, such as the question: can employers require their workers to take COVID-19 tests to determine if they are infected?
In Portugal, as a general rule an employer cannot require employees to be tested or examined in any way. But due to the pandemic and the State of Calamity surrounding it, employers can request that a worker be tested if the reason for the request pertains to "the protection and safety of the employee or a third party". In this situation, the employer must state this request and the reasons for it in writing.