Portugal: Parliament Approves Law to Amend Telework Regime in Labor Code

Portugal: Parliament Approves Law to Amend Telework Regime in Labor Code

On November 5, 2021, the Assembly of the Republic, the parliament of Portugal, voted to approve a replacement text that alters the country’s telework regime by amending the Labor Code (Law No. 7/2009 of February 12, 2009) and Law No. 98/2009, of September 4, 2009. As of November 19, 2021, the amendments to the Labor Code and Law No. 98/2009 contained in the replacement text had not been published in the Official Gazette of the Republic.

Amendments to the Labor Code

The replacement text amends article 165 of the Labor Code to redefine telework (teletrabalho) as work done by an employee under legal subordination to an employer in a location not determined by the employer and with the employee conducting work through information and communication technologies. (Labor Code art. 165(1).)

Article 166 provides that the implementation of the telework regime is always contingent on a written agreement that can either be part of the initial work contract or be an independent contract. (Art. 166(2).) The telework agreement defines where the workers will perform their duties, their work schedule, their work hours, and any necessary work equipment. (Art. 166(4)(b), (c), (d), (g).) If the employer proposes a telework agreement, the worker’s opposition to the agreement does not constitute cause for dismissal or any sanctions. (Art. 166(6).) The employer can define, through internal published regulations and in observance of the General Regulation of Data Protection, the company’s acceptable activities and conditions for telework. (Art. 166(9).)

The employer is responsible for making available to the employee any equipment and systems necessary for the completion of work. (Art. 168(1).) Also, the employer is responsible for compensating the worker for (1) any costs that the worker can prove are a direct consequence of acquiring the necessary equipment and systems, (2) increases in energy and internet costs due to the use of equipment, and (3) any maintenance costs for the equipment and systems. (Art. 168(2).) The compensation payment for such costs is due immediately. (Art. 168(4).) Because the systems and equipment are provided by the employer, the employer can determine the acceptable uses of the equipment. (Art. 168(6).)

Under article 169, teleworkers have the same rights and duties as other company workers in the same or similar functions. These rights and duties include promotions, duration of work, breaks, paid holidays, health and work insurance, reparation for accidents and illnesses resulting from work, and access to workers’ representative organizations (estruturas representatives dos trabalhadores). (Art. 169(1).) Teleworkers can participate in union, inter-union, and workers’ collective meetings in-person as well as remotely in meetings organized by workers’ representative organizations. (Art. 169(3), (5).) Any violations of article 169 are considered grave offenses. (Art. 169(7).)

The employer must respect the worker’s privacy, schedule, and breaks, as well as provide good physical and psychological work conditions. (Art. 170(1).) Whenever telework is done in the worker’s home, visits by the employer require 24-hour notice and the worker’s agreement. (Art. 170(2).) Visits should relate only to work activities or equipment and should occur only in the worker’s presence during work hours determined in the telework contract. (Art. 170(3).) When visiting the worker’s home, the employer should act in a manner that is commensurate with and proportional to the objectives and reason for the visit. (Art. 170(4).) Any capture or use of images, sound, texts, history (histórico), or other measures that may affect the worker’s right to privacy are prohibited. (Art. 170(5).) Violations of numbers 1, 2, 3, and 4 of article 170 constitute a grave offense, while violations of number 5 constitute a very grave offense. (Art. 170(6)–(7).)

Amendments to article 465 state that workers’ representative organizations have the right to post on internal company portals any communications, information, or other texts related to union activities and workers’ socio-professional interests, as well as distribute these materials through email to a list of teleworkers provided by the employer. (Art. 465(2).)

New Articles Added to the Labor Code

Article 3 of the replacement text adds new articles to the Labor Code. Article 166-A provides that workers have the right to remote work when teleworking is compatible with their performed activities. (Labor Code art. 166-A(1).)

Also, workers with children age three years and younger have the right to telework when the work is compatible with telework or the employer provides the resources for telework. (Art. 166-A(2).) Working parents who have children up to eight years old and who are both eligible for telework may be allowed to work remotely in successive periods of equal duration within a maximum reference period of 12 months. (Art. 166-A(3)(a).) Workers who are single parents or live in households where only one parent has access to telework are also eligible to telework if they have children up to eight years old. (Art. 166-A(3)(b).) Employers cannot oppose employees’ telework requests made under the terms of the abovementioned situations. (Art. 166-A(4).) However, the rights to telework presented in number 3 of this article are not applicable to employees of microenterprises. (Art. 166-A(7).)

In addition, workers who are considered informal or nonprimary caretakers have the right to telework for a maximum of four consecutive or intermittent years when their work is compatible with teleworking or the employer provides resources to enable teleworking. (Art. 166-A(5).) An employer can oppose these workers’ telework requests if conditions at the company or requirements for its functioning are not conducive to teleworking. (Art. 166-A(6).)

Any remote work meetings or projects that have precise timelines or must be worked on with other workers should occur within work hours and be scheduled with 24 hours’ notice. (Art. 169-A(1).)  Teleworking employees are obligated to attend meetings, trainings, or other events that require their physical presence and have been organized with at least 24 hours’ notice. (Art. 169-A(2).) The supervision of work by the employer “should respect the principles of proportionality and transparency,” and forcing workers to be continuously monitored through image or sound during the workday is prohibited. (Art. 169-A(5).) Moreover, to reduce the feeling of isolation among workers, employers should promote in-person contact between workers and their supervisors and with other workers through meetings determined by the telework agreement. If not determined by the telework agreement, in-person meetings should be held at intervals not exceeding two months. (Art. 169-B(1)(c).)

Employers also have the duty to refrain from contacting workers during their rest periods except in extreme situations and are considered to have committed a discriminatory act if they treat any workers less favorably for exercising their right not to be contacted during rest periods. (Art. 199-A(1)–(2).)

Employees also have special duties with regard to the telework regime. (Art. 169-B(2).) They must inform the company of any defects in the functioning of their telework equipment. (Art. 169-B(2)(ca).) They must also follow their employers’ instructions pertaining to the security of work activity information and follow any instructions regarding the personal use of equipment and systems. (Art. 169-B(2)(b)–(c).)

The new law prohibits teleworking for work that involves the use of or contact with dangerous substances or materials, except in certified installations. (Art. 170-A(1).) In addition, the legal reparation regime recognizes that work accidents and illness caused by work apply to telework situations because the location chosen by workers is considered their work location. (Art. 170-A(5).) The oversight of compliance with regulatory teleworking norms, including worker safety and health, is the responsibility of the ministry responsible for labor oversight. (Art. 171(1).)

Prepared by Elizabeth Marin, Law Library intern, under the supervision of Eduardo Soares, Senior Foreign Law Specialist

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