[Spain] New regulations could make remote working a fixture

More than a year after the onset of the global pandemic, remote working in Spain has proven so effective that many believe it will become a fixture of post-COVID working life. However remote work raises a host of legal and administrative challenges. 

Lexology considered recent developments to explore the impact of 'remote work' in Spain for both workers and companies.

New regulations could make remote work a fixture of post-COVID Spain

According to labour law expert Eva Ceca - a Counsel with CMS Spain - before the pandemic there was limited regulation in Spain covering remote work.

Remote-working issues, such as who is responsible for paying expenses and any control measures for the monitoring of remote work, were not addressed in Spanish regulations and were negotiated between employers and workers or were included in collective-bargaining agreements.

"In Spain, remote work was something that was not very developed," CMS's Ceca said.

This changed in 2020 with the arrival of the pandemic and the declaration of a state of alarm (state of emergency). In response to this declaration and government isolation orders, the Spanish government passed a decree identifying remote work as the preferential organisation system and preventative measure that would allow workers to continue their responsibilities in safety and enable some companies to continue operations.

In order to expedite widespread use of remote work, the government also exempted companies from their normal health and safety responsibilities by requiring remote workers to carry out health and safety self-assessments.

The preferred option of remote working as stated in the Spanish regulations published during the pandemic will remain in force until August 9, 2021; three months after the conclusion of the state of alarm, which took place on May 9. However, the recommendation to promote remote work as a preventive measure is still in place in many regions.

How Spanish work life has altered

The pandemic and the Spanish government's adoption of remote work as a counter-measure has had a profound effect on the way Spaniards conduct work.

Between 2010 and the end of 2020, the number of remote workers in Spain increased from 707,100 to 1.924 million. In addition, the number of remote workers in Spain doubled between 2019 and 2020. In 2021, 10 per cent of the Spanish workforce is either engaged in remote work or telework with the following breakdown according to age:

* Under 25 years: 5.7 per cent of the workforce.

* 25 - 45 years: 10.6 per cent of the workforce.

* Over 45 years: 9.7 per cent of the workforce.

Remote work in post-pandemic Spain

Although Spain's state of alarm has officially ended, remote work is expected to remain part of Spain's business strategy and employment culture for the foreseeable future. In recognition that employment in Spain is undergoing change, the government passed Royal Decree-Law 28/2020 of 22 September, which addresses "all forms of remote working" and was effective from 13 October 2020. Recently, the Law 10/2021 of 9 July on remote work was published, which resulted from discussions on the Royal Decree in parliament, but only includes minor changes to the previous regulation.

The new regulation applies to regular remote work, which is remote working that “represents at least 30 per cent of the working time" over a three-month reference period, CMS expert Ceca said. Adding that the new regulation does not apply to companies that implemented remote work as a response to the pandemic.

Furthermore, the regulation places remote work in two categories:

* Work from home.

* Telework.

Contents of the new regulation

The new regulation on remote work covers areas such as the basic principles of remote work, employment agreements regulating remote work and internal regulations for companies.

In the area of basic principles, the regulation provides for the following rights:

* The voluntary and reversible nature of remote work; and

* The equal treatment and non-discrimination of remote workers.

In the area of employment agreements, the new regulation states:

* A written employment agreement outlining this arrangement should be sealed between the remote worker and the employer;

* The agreement regulating remote working must include a minimum amount of content, in particular: (i) inventory of the means and equipment to provide remote work; (ii) list expenses to provide remote services, the way to quantify the compensation of expenses that should be paid by the company, and the timing and form of payment; (iii) work schedule and availability rules; (iv) percentage and distribution of remote work and office-based work; (v) workplace; (vi) the place chosen by the employee to provide remote services; (vii) prior notices for reversibility; (viii) control measures; (ix) procedures to be followed in case of technical difficulties; (x) instructions on data protection; (xi) instructions on information security; (xii) term of remote work agreement.

* The employer must provide a copy of all employment agreements regulating remote work to the employee representatives at a given company.

In the area of company internal policies, the decree states:

* The companies should establish the criteria to use the IT equipment observing the minimum standards to protect the employees’ right to privacy and data protection, and elaborate a policy regulating the employee's right to disconnect during non-working hours, explains labour expert Cristina Ridruejo, a Senior Associate with CMS Spain.

* Employee representatives should be involved in drafting these internal policies;

* Collective Bargaining Agreements (CBAs) can introduce additional instructions or obligations on these matters;

Pros and cons of remote work

According to CMS expert Ridruejo, remote work carries specific advantages and disadvantages for employees. The advantages of remote work include:

* The ability of remote workers to strike a better work-life balance;

* This balance can lead to improved attitudes concerning work;

* Employee savings in terms of costs (e.g. for transportation expenses, parking, lunches, work clothing, etc.) and time (e.g. the elimination of daily commutes);

* Improved trust between employers and employees with the onus on employees to fulfill their work obligations;

* A decreased environmental impact (e.g. reduction in traffic, etc.).

The disadvantages of the remote-working relationship include:

* The difficulties some remote workers have in separating their private and professional lives when their home is also their office;

* The advent of new occupation illnesses stemming from isolation, computer fatigue, stress, etc.

* The remote workers’ inability to use company facilities on a daily basis to complete tasks;

* The elimination of the team environment a communal office provides.

For remote home-based employees, the ever-present issue is; can they really fully disconnect from work even on weekends and non-working hours? Similarly, employers with remote workers must struggle with supervision; how can they accurately monitor the work of remote employees while respecting employee data protection and privacy rights.

COVID-19 and Health and Safety

In common with many other countries, the COVID-19 pandemic has resulted in the passage of special health and safety measures designed to protect Spanish employees.

Both nationally and regionally, health and safety guidelines have been updated or are in the process of being revised to fully address the specific challenges of work in the era of COVID-19.

Under these new regulations, companies and employers should update their health and safety regulations to reflect new guidelines and ensure that all changes are communicated to employees.

Under these guidelines, employers have a duty of care to all employees, particularly vulnerable workers (e.g. those with pre-existing health conditions or are of an age that makes them susceptible to serious complications from COVID-19).

Under the guidelines, employers can implement the following measures in the workplace to protect employees and ensure a safe working environment:

* Provide regular onsite COVID-19 testing;

* Create flexible working times in order to minimise the number of workers onsite at a given time, and to organise meal times and seating in order to prevent crowding;

* Encourage employees to consider remote work;

* Provide temperature measurements at worksite entrances to identify individuals with possible COVID-19 symptoms;

* Provide tools and stations where workers can regularly wash and disinfect;

*During the post-pandemic transition period, remote workers can be invited back to the office on a volunteer and organised basis.

Health and Safety for remote workers

Employers must also consider the health, safety and wellbeing of remote workers, paying special attention to the following occupational perils of the home-office:

* mental health (stemming from isolation and stress);

* ergonomic issues (the safety of home-office equipment such as screens, keyboards and chairs); and

* organisational risks.

Employer responsibility to remote workers is chiefly focused on that area of the employee's residence identified as the home office.

Employers are required to conduct home-office risk assessments to assist in creating a healthy and safe home-office environment, but employee consent is required. Only as a consequence of the pandemic are employees allowed to undertake self-assessments while working remotely.

Vaccinations

Spanish employers face several urgent questions regarding COVID-19 vaccinations including the following:

How can employers encourage employees to be vaccinated, and can employers provide workers with a financial incentive to be vaccinated?

Currently in Spain, the decision to become vaccinated is strictly voluntary, which means that vaccination incentives could be interpreted as personal interference in the private lives of employees.

Can an employer verify which workers have been vaccinated, and if so can employers make a record of these vaccinated employees?

The employer can request information on an employee's vaccination status, and if this information is recorded, it must comply with Spanish data-protection laws.

Can employees refuse to be vaccinated without professional repercussions and must an employee give a reason for a refusal?

An employee in Spain can refuse to be vaccinated and does not need to give a reason for this refusal.

Can an employer refuse to admit a non-vaccinated employee into the workplace?

Any attempt to bar non-vaccinated employees from a workplace would likely be deemed justified and disproportionate by a labour court, particularly if employee health can be protected in other ways (e.g. the use of masks, social distancing, etc.)

More than a year after the onset of the global pandemic, remote working in Spain has proven so effective that many believe it will become a fixture of post-COVID working life. However remote work raises a host of legal and administrative challenges. 

Lexology considered recent developments to explore the impact of 'remote work' in Spain for both workers and companies.

New regulations could make remote work a fixture of post-COVID Spain

According to labour law expert Eva Ceca - a Counsel with CMS Spain - before the pandemic there was limited regulation in Spain covering remote work.

Remote-working issues, such as who is responsible for paying expenses and any control measures for the monitoring of remote work, were not addressed in Spanish regulations and were negotiated between employers and workers or were included in collective-bargaining agreements.

"In Spain, remote work was something that was not very developed," CMS's Ceca said.

This changed in 2020 with the arrival of the pandemic and the declaration of a state of alarm (state of emergency). In response to this declaration and government isolation orders, the Spanish government passed a decree identifying remote work as the preferential organisation system and preventative measure that would allow workers to continue their responsibilities in safety and enable some companies to continue operations.

In order to expedite widespread use of remote work, the government also exempted companies from their normal health and safety responsibilities by requiring remote workers to carry out health and safety self-assessments.

The preferred option of remote working as stated in the Spanish regulations published during the pandemic will remain in force until August 9, 2021; three months after the conclusion of the state of alarm, which took place on May 9. However, the recommendation to promote remote work as a preventive measure is still in place in many regions.

How Spanish work life has altered

The pandemic and the Spanish government's adoption of remote work as a counter-measure has had a profound effect on the way Spaniards conduct work.

Between 2010 and the end of 2020, the number of remote workers in Spain increased from 707,100 to 1.924 million. In addition, the number of remote workers in Spain doubled between 2019 and 2020. In 2021, 10 per cent of the Spanish workforce is either engaged in remote work or telework with the following breakdown according to age:

* Under 25 years: 5.7 per cent of the workforce.

* 25 - 45 years: 10.6 per cent of the workforce.

* Over 45 years: 9.7 per cent of the workforce.

Remote work in post-pandemic Spain

Although Spain's state of alarm has officially ended, remote work is expected to remain part of Spain's business strategy and employment culture for the foreseeable future. In recognition that employment in Spain is undergoing change, the government passed Royal Decree-Law 28/2020 of 22 September, which addresses "all forms of remote working" and was effective from 13 October 2020. Recently, the Law 10/2021 of 9 July on remote work was published, which resulted from discussions on the Royal Decree in parliament, but only includes minor changes to the previous regulation.

The new regulation applies to regular remote work, which is remote working that “represents at least 30 per cent of the working time" over a three-month reference period, CMS expert Ceca said. Adding that the new regulation does not apply to companies that implemented remote work as a response to the pandemic.

Furthermore, the regulation places remote work in two categories:

* Work from home.

* Telework.

Contents of the new regulation

The new regulation on remote work covers areas such as the basic principles of remote work, employment agreements regulating remote work and internal regulations for companies.

In the area of basic principles, the regulation provides for the following rights:

* The voluntary and reversible nature of remote work; and

* The equal treatment and non-discrimination of remote workers.

In the area of employment agreements, the new regulation states:

* A written employment agreement outlining this arrangement should be sealed between the remote worker and the employer;

* The agreement regulating remote working must include a minimum amount of content, in particular: (i) inventory of the means and equipment to provide remote work; (ii) list expenses to provide remote services, the way to quantify the compensation of expenses that should be paid by the company, and the timing and form of payment; (iii) work schedule and availability rules; (iv) percentage and distribution of remote work and office-based work; (v) workplace; (vi) the place chosen by the employee to provide remote services; (vii) prior notices for reversibility; (viii) control measures; (ix) procedures to be followed in case of technical difficulties; (x) instructions on data protection; (xi) instructions on information security; (xii) term of remote work agreement.

* The employer must provide a copy of all employment agreements regulating remote work to the employee representatives at a given company.

In the area of company internal policies, the decree states:

* The companies should establish the criteria to use the IT equipment observing the minimum standards to protect the employees’ right to privacy and data protection, and elaborate a policy regulating the employee's right to disconnect during non-working hours, explains labour expert Cristina Ridruejo, a Senior Associate with CMS Spain.

* Employee representatives should be involved in drafting these internal policies;

* Collective Bargaining Agreements (CBAs) can introduce additional instructions or obligations on these matters;

Pros and cons of remote work

According to CMS expert Ridruejo, remote work carries specific advantages and disadvantages for employees. The advantages of remote work include:

* The ability of remote workers to strike a better work-life balance;

* This balance can lead to improved attitudes concerning work;

* Employee savings in terms of costs (e.g. for transportation expenses, parking, lunches, work clothing, etc.) and time (e.g. the elimination of daily commutes);

* Improved trust between employers and employees with the onus on employees to fulfill their work obligations;

* A decreased environmental impact (e.g. reduction in traffic, etc.).

The disadvantages of the remote-working relationship include:

* The difficulties some remote workers have in separating their private and professional lives when their home is also their office;

* The advent of new occupation illnesses stemming from isolation, computer fatigue, stress, etc.

* The remote workers’ inability to use company facilities on a daily basis to complete tasks;

* The elimination of the team environment a communal office provides.

For remote home-based employees, the ever-present issue is; can they really fully disconnect from work even on weekends and non-working hours? Similarly, employers with remote workers must struggle with supervision; how can they accurately monitor the work of remote employees while respecting employee data protection and privacy rights.

COVID-19 and Health and Safety

In common with many other countries, the COVID-19 pandemic has resulted in the passage of special health and safety measures designed to protect Spanish employees.

Both nationally and regionally, health and safety guidelines have been updated or are in the process of being revised to fully address the specific challenges of work in the era of COVID-19.

Under these new regulations, companies and employers should update their health and safety regulations to reflect new guidelines and ensure that all changes are communicated to employees.

Under these guidelines, employers have a duty of care to all employees, particularly vulnerable workers (e.g. those with pre-existing health conditions or are of an age that makes them susceptible to serious complications from COVID-19).

Under the guidelines, employers can implement the following measures in the workplace to protect employees and ensure a safe working environment:

* Provide regular onsite COVID-19 testing;

* Create flexible working times in order to minimise the number of workers onsite at a given time, and to organise meal times and seating in order to prevent crowding;

* Encourage employees to consider remote work;

* Provide temperature measurements at worksite entrances to identify individuals with possible COVID-19 symptoms;

* Provide tools and stations where workers can regularly wash and disinfect;

*During the post-pandemic transition period, remote workers can be invited back to the office on a volunteer and organised basis.

Health and Safety for remote workers

Employers must also consider the health, safety and wellbeing of remote workers, paying special attention to the following occupational perils of the home-office:

* mental health (stemming from isolation and stress);

* ergonomic issues (the safety of home-office equipment such as screens, keyboards and chairs); and

* organisational risks.

Employer responsibility to remote workers is chiefly focused on that area of the employee's residence identified as the home office.

Employers are required to conduct home-office risk assessments to assist in creating a healthy and safe home-office environment, but employee consent is required. Only as a consequence of the pandemic are employees allowed to undertake self-assessments while working remotely.

Vaccinations

Spanish employers face several urgent questions regarding COVID-19 vaccinations including the following:

How can employers encourage employees to be vaccinated, and can employers provide workers with a financial incentive to be vaccinated?

Currently in Spain, the decision to become vaccinated is strictly voluntary, which means that vaccination incentives could be interpreted as personal interference in the private lives of employees.

Can an employer verify which workers have been vaccinated, and if so can employers make a record of these vaccinated employees?

The employer can request information on an employee's vaccination status, and if this information is recorded, it must comply with Spanish data-protection laws.

Can employees refuse to be vaccinated without professional repercussions and must an employee give a reason for a refusal?

An employee in Spain can refuse to be vaccinated and does not need to give a reason for this refusal.

Can an employer refuse to admit a non-vaccinated employee into the workplace?

Any attempt to bar non-vaccinated employees from a workplace would likely be deemed justified and disproportionate by a labour court, particularly if employee health can be protected in other ways (e.g. the use of masks, social distancing, etc.)