New remote work legislation in Spain: requirements and other considerations

The new decree on remote work was approved last Tuesday in the Consejo de Ministros after the Spanish government reached an agreement on Monday with social stakeholders. After several months of negotiations, the decree will enter into force 20 days after its publication in the Official State Gazette of Spain, or Boletín Oficial del Estado (BOE). The bill will subsequently be processed by Parliament.

When the regulation is applicable

If remote work has been a measure implemented as a result of COVID-19, the final version of the approved decree specifies that strict compliance with the regulation will not be necessary. However, companies will have to cover any costs incurred by the worker when working remotely.

According to the decree, remote work is understood as such when it meets or exceeds 30% of the working day for at least three months, which is equivalent to 1 and a half days per week.

Working remotely one day per week or less will not be considered remote work, or teletrabajo.* The regulation understands this to simply be a measure of flexibility on the part of the company for the worker.

*There is sometimes a distinction made between remote work and telework, or teletrabajo. The former suggests that the employee lives outside the geographic region where the company is located, and the latter can be understood to mean that the employee may engage in some on-site work. However, these terms are frequently used interchangeably, as is done here.

Covering the cost of remote work

The company will be responsible for covering all expenses related to working remotely. This includes providing all requisite equipment and the means necessary to carry out the work, as well as handling any related maintenance.

The regulation states that collective bargaining agreements will determine the mechanisms to cover the costs.

Remote work agreements 

With the entry into force of the new legislation, it will be necessary to formalise written agreements between the company and the worker. The employer must register such agreements with the employment office in Spain and provide copies to labor representatives.

While the content of such agreements will be established in accordance with collective bargaining, the decree specifies particular items that it are obligatory to include:

• An inventory of the equipment, tools and means required for executing the remote work, including consumables and furniture, as well as the lifespan or maximum period until such items must be renewed.
• A list of the expenses that the employee may incur for working remotely, as well as a way to quantify the compensation that the company must provide, plus when and how it will be handled. If applicable, this will correspond to what was outlined in the related agreement or collective bargaining agreement.
• Working hours of the employee and rules of availability, when appropriate.
• Percentage and distribution between on-site work and remote work, if applicable.
• Company location the remote worker will be assigned to and, if applicable, where they will be working part of the time on-site.
• Remote workplace chosen by the employee to perform his or her work remotely.
• Length of notice periods for reversal of circumstances, if applicable.       
• Means of company control over the remote work activity.
• Procedures to follow in the event of technical difficulties that impede remote work.
• Instructions issued by the company, along with the participation of the legal representatives of the employees, regarding data protection specifically applicable to remote work.
• Instructions issued by the company, with prior information to the legal representatives of the employees, on information security specifically relating to remote work.
• Duration of the remote work agreement.  

Signing remote work agreements

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Other important considerations

In addition to what has been outlined above, the following are some further important points that are addressed in the regulation.

Willingness

Remote work will be voluntary on the part of the worker. In other words, employees will not be obliged to work remotely.

Same rights as on-site employees

Remote workers maintain the same rights as those who perform their job on company premises. This applies to all facets of the job including salary, training, promotions, etc.

Not accepting working remotely will not justify dismissal or contract modification

In the event that the worker rejects the option of working remotely, the company will not be able to justify the termination of the employment relationship or a substantial modification of the working conditions. This could be attributed to difficulties in executing job duties if they are connected to the shift from in-person service to remote service.

Right to privacy and digital disconnection

The Royal Decree Law permits the use of means to control the work of employees through devices. However, they must guarantee the employee’s right to privacy and data protection, as well as the right to digital disconnection outside working hours.

For more information on the new regulations, you can access the Official State Gazette of Spain outlining Royal Decree-Law 28/2020 of September 22 on remote work here.