Castellán

As we previously reported, on February 20 of the current year, the deadline provided in the Law for Promotion and Regulation of Telecommuting (Law No. 19,978) expired for companies that had personnel under this modality to adjust the labor conditions to its provisions. As of that date, the Law had not been regulated (https://www.castellan.com.uy/es/noticias/94/teletrabajo-finalizo-el-periodo-de-adaptacion-de-las-empresas-a-la-nueva-ley.html).

Finally, on March 17, 2022, its regulation was approved. Several issues are incorporated into it that, together with the provisions of the Law, companies that implement this regime in their organization must take into account.

Next, we will address the most relevant aspects of it:

Definition of Telecommuting:

The definition of telecommuting provided in the Law incorporates the \"hybrid\" modality (referring to partial telecommuting, when tasks are performed both remotely and in person), providing that in these cases the employer and the worker may agree on whether the Telecommuting Law and its particularities will be applicable to the employment relationship or not. Freedom of definition is granted to the parties in this regard.

Written agreement:

The points that the parties must agree in writing in the employment contract or addendum (depending on whether telecommuting is agreed at the beginning of the employment relationship or during its course) are enumerated in compliance with the legal requirement. Among them, they must agree on: the voluntariness to agree to the regime, the place or places where the tasks will be performed, the hours or time ranges in which they will be carried out, the rest times (intermediate, between days and weekly), the existence or not of an attendance record, the provision of work equipment and tools, etc.

Change of modality:

The Law established that changes in the work modality (from telecommuting to in-person or vice versa) require a written agreement. The decree adds that in case of no express agreement, the modifications that determine the provision of work under one modality or another (telecommuting or in-person) for more than 45 days will be understood as permanent.

Hourly distribution, breaks, and service needs:

Regarding the faculty granted by the Law to the telecommuter to distribute work hours between days, based on the maximum weekly hours applicable to them (44 or 48 hrs. depending on the sector of activity), the Decree clarifies that, despite this faculty, breaks must be respected. It also incorporates that the company's operating and organizational schedule should be considered (a point that is vital to agree on beforehand in the employment contract or addendum to limit the telecommuter's discretion). Finally, it is provided that if the agreed regime is \"hybrid,\" the eventual distribution of hours in the week applies equally to all worked days, not only to those performed remotely.

Right to disconnect:

In addition to the right to disconnect from digital devices provided by the Law to ensure effective rest, the regulation adds the prohibition of sanctioning the worker who refuses to perform tasks during these times.

Hourly control record:

Regarding the company's faculty to implement an hourly control record provided by the Law, the regulation clarifies that it must not invade the employee's and their family's privacy and intimacy.

Security and Health:

Companies must, through their occupational health and safety management system (Occupational Health and Safety Services and Health and Safety Committee), analyze compliance with applicable regulations, evaluate and identify the risks to which telecommuters are exposed in the places where tasks are performed, including ergonomic and psychosocial risks. The General Labor and Social Security Inspection (“IGTSS”) may request companies to report the identified risks and preventive measures to be taken, and may inspect, with the employee's consent (or, failing that, with prior judicial authorization) the safety and health conditions of the place chosen for task performance. In case of non-compliance, it may temporarily suspend the remote work regime (without prejudice to possible sanctions against the employer).

Work Tools:

Regarding the equipment, supplies, and services that the parties agree are necessary for task performance (and that, in the absence of an agreement, the employer must provide), the Decree establishes that the employee is responsible for their care and exclusive use, as well as for informing the company in case of any damage, malfunction, or circumstance that prevents their use.

Final Reflection

Although the regulation incorporates several important concepts and clarifies some doubts for the implementation of the regime (highlighting references to the collaboration of the telecommuter in the correct compliance with labor standards, which we consider appropriate considering the employer's difficulty in monitoring task performance), it should be noted that some aspects will require further study and future legislation, especially those related to the applicable safety and health regulations, as well as the inspection procedure of the IGTSS provided in these regulations.

Montevideo, March 23, 2022