Changes to the teleworking system in Portugal – employment and HR

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On November 5, 2021, the Portuguese Parliament approved the replacement text for bills from various parties. This text introduces various changes to the teleworking regime in the form of amendments and additions to the Labor Code and Act 98/2009 of September 4th – the Act regulating occupational accidents and diseases. It is also foreseen that this new law will enter into force on the first day of the month following its publication. It is therefore expected to come into force this year.

With regard to the main developments resulting from this regulation, it should first be noted that the employer cannot pre-determine the place where it is carried out so that teleworking can be regarded as such.

It should also be noted that it is now expressly provided that the employee, if the proposal of a teleworking contract is made on the initiative of the employer, can simply object by the employer or as a reason without justification for such an objection, which cannot serve as a reason for termination for imposing a sanction.

A further development included in the current regulation relates to the increased energy and network costs that are installed at the (tele) workstation at a speed that is compatible with the requirements of service communication, as well as the maintenance costs of the aforesaid Devices and Systems. If the employee can demonstrate such costs, then they should be duly paid by the employer. In addition, this compensation is due immediately after the employee has incurred the aforementioned expenses and these are tax expenses for the employer and not as income for the employee. This regime also provides for additional expenses to be understood for this, which are defined as:
“(…) those corresponding to the acquisition of goods and / or services that the employee did not have before the conclusion of the agreement referred to in Article 166
[agreement for the provision of telework], as well as those determined by comparison with the employee’s homologous expenses in the same month of the last year before the application of this agreement. “

The right to telework also exists for parents with children up to the age of 8 if both parents meet the requirements for telework, meet other requirements, as well as for single parents or situations in which only one parent meets the requirements for telework. However, this right does not apply to employees of micro-businesses.

In addition, the right of the employee to rest and to “separation” has been established and the employer is not allowed to contact the employee during the rest period. Any disadvantageous treatment – particularly with regard to working conditions or professional progress – of an employee who exercises this right is also defined as discriminatory.

These changes are undoubtedly aimed at creating a regime compatible with the global impact of teleworking following the spread of the Sars-Cov-2 virus, with legislatures trying to protect workers and access teleworking in activities enable that make this possible. However, as in many other work matters, exercising some of these rights and demonstrating some of these requirements can prove to be particularly difficult.

In addition, the draft law does not seem to provide for any transitional arrangements, so the regulation for teleworking contracts concluded before the entry into force of this law is uncertain, in particular with regard to the duration of teleworking regulations introduced before the new law, with the foreseen period for earlier employee employed by the employer was 3 years.

The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.

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