Regulation of the Teleworking Law – Decree 86/2022

telecommuting was regulated by Law 19,978, enacted on August 20, 2021 and was recently regulated by Decree 86/2022 dated March 17, 2022.

Let us remember that teleworking, as indicated in Art. 1 of the Law, is the provision of work, in whole or in part, outside the physical environment provided by the employer, predominantly using information and communication technologies, either whether interactively or not (online – offline).

The aforementioned Decree covers some legal gaps and also details the minimum conditions that must be established in the employment contract for this type of employment relationship. In this sense, the Decree particularly regulates the following aspects: partial teleworking, modification in the work modality, the working day, the attendance register, the safety and health of the worker. It also incorporates the “hybrid” work model (partial telecommuting) and emphasizes the freedom of the parties to agree on all labor terms.

What does the hybrid model consist of?

This model incorporated in Decree 86/2022, consists of semi-face-to-face work or partial telework. In article 1, it is established that employers and workers must agree on the days that they will carry out face-to-face work, the days of teleworking and the hours that the worker must comply with in any of the regimes in which they are working at the moment.

It should be noted that, regardless of the way in which the worker performs his work, the employer must ensure the safety and health of his workers. The employer must inspect the place agreed by the worker to provide his services and in the event that the worker does not allow the employer (company) to enter his home, he must notify the Ministry of Labor and Social Security (MTSS) who may request judicial authorization for the inspection.

If the MTSS finds non-compliance with the regulations, in addition to sanctions, teleworking will be suspended until the conditions or the place where it is carried out are modified.

As specified in the Decree, if a worker is performing their work under the hybrid model, the contract must be regulated by teleworking regulations.

Main aspects of Decree 86/2022:

Law 19,978 establishes that both parties must agree on the teleworking modality, at the beginning or during the employment relationship. The Decree provides content to the employment contract.

• an employment contract where there is teleworking, it must have: the will of both parties, detail the places from which teleworking can be provided, the organization of work, the days and hours (it can be a time range) of work, the rest time (intermediate, between days and weekly), the disconnection, the form of provision of the necessary work tools and, if it exists, you can establish an “attendance and schedule record” of the employer or agreed between the parties.

• Establish in the employment contract, by agreement of the parties, the days and times in which face-to-face work and telework will be carried out.

• In the case of the hybrid work model, it allows the employment contract to be governed by the Telework Law. Until now, the days of teleworking were governed by the Teleworking Law and the days of face-to-face work were governed by the traditional Law.

• The teleworker must report any change of address, or of the health and safety conditions of the workplace, whether temporary or permanent.

• Establish what the disconnection time is. By “disconnection” is meant the period of at least 8 hours in which the worker has the right not to be contacted by any means by the employer and cannot be sanctioned.

• It makes it possible for both parties to agree on the control system, clarifying that it cannot affect the privacy of the employee. Prior to the Decree, there was no regulation for the employer to control that the worker complied with his schedule.

• Regarding the modification of the work modality, the Decree specifies that it must be by mutual agreement between the parties and must be in writing. This rule also established that, unless agreed, one or another modality will be endorsed as permanent when one of them has elapsed for more than 45 days.

conclusion

It is a Decree that gives greater content to the Teleworking Regulation Law, thus being more specific in each of the points and being aligned with the Law approved in 2021. It is progress, but there is still a way to go in this matter and in practice new issues will arise to be resolved.