22 marzo 2021

On April 1 the Telework Act Becomes Effective but Work From Home Will Not Create Rights: Why? Published in

In just a few days’ time the newly-passed Telework Act will become effective with a last minute change that is warmly welcomed by the business sector.

Article by Julián A. de Diego published in on March 21, 2021

The Department of Labor passed Resolution No. 142/2021 establishing that any remote work arrangements whereby employees work from home and at-risk groups and company staff follow the preventive measures taken by their employer to reduce the risk of infection do not replace the written agreement under Section 7 of the Legal System for Telework Agreements as a meeting of the minds of the parties. As a matter of fact, the Telework Act No. 27555 and its regulatory Executive Order No. 27/2021 become effective on April 1, and many theories have been proposed under the special circumstances we are undergoing as a result of the Covid-19 pandemic.

In practice, when the public health emergency started on March 20, 2020, the stay-at-home mandate was imposed, with a mandatory preventive social quarantine, which then in December became mandatory social distancing, and  is still in place for essential services and otherwise.

Considering the worrisome evolution of the pandemic, there is a significant number of remote workers who work from home and who are indispensable for business operation remotely.

In this context, a piece of legislation has been passed to regulate telework, and many people discuss whether it is effective or not. In case of doubt, it is made clear that the law will be enforceable and applicable as from April 1, 2021, and therefore each teleworker must enter into an agreement under Section 7 of Act No. 27555 following the principle of voluntary acceptance.  

Then there is the doubt about which rights may be created as a result of the work from home arrangements adopted during the pandemic due to force majeure. In fact, there are no accrued rights when reality is marked by an unexpected event or any foreseeable event that could not be avoided. In a scenario like today’s, where vaccination is taking too long, and it is indispensable to maintain many preventive measures, the Telework Act will be applied progressively and gradually for sure. In any case, the written agreement must be made under the special conditions agreed between teleworkers and employers.

For telework, employees’ voluntary acceptance cannot be expressed tacitly as a result of concurrent, concomitant events, but rather it requires a written agreement as evidence in accordance with the law. Please remember that it is an exceptional mode, and therefore the burden of proof falls always on employers.

In other words, remote workers who work from home cannot claim accrued rights to keep on working from home when their employer starts to reopen the office to return to the new normal.

Employers must set out new rules through the contractual telework arrangement (Section 102 bis of the Employment Contract Act) in compliance with the entire legal system, i.e. the applicable Act No. 27555, the Employment Contract Act, and compatible labor laws. It is worth mentioning that many aspects typical of telework require a written agreement even if work from home is implemented due to the pandemic, such as distribution of working hours and special work schedule for those with caregiving responsibilities; supply of telematics equipment and costs covered by employers; inspection, maintenance and repair services for equipment provided by employers; use of telematics tools and restrictions; employees’ consent to monitoring systems for emails and other corporate communication channels (see Section 153 bis of the Criminal Code).

Employees cannot use the IT tools provided by the company for personal private purposes. Every effort should be made to ensure the secrecy of correspondence and protect teleworkers’ home address (Article 18 of the National Constitution); employees should give their consent when it is necessary to go into their house for any proceeding or operation, whichever the reason, due to business needs or simply for workers’ compensation prevention measures by SRT [Workers’ Compensation Supervising Authority], ART [Workers’ Compensation Insurance Companies], the Department of Labor, or employer in relation to preventive medicine, safety and health.

To sum up, the return to total in-person work will be shocking, and many companies think it will be ideal to introduce a hybrid system combining remote work and in-person work. New pieces of legislation and the use of apps opening up a new horizon lead to revise employment v self-employment.

There are those who believe that even today full-time work from home requires the written agreement under the Telework Act, which may occur in an indeterminable near future.  

Very few people can see that the technological reformulation driven by the pandemic is revolutionary, with a dynamic of its own that exceeds any forecasts and creates unlimited expectations.

In practice, all industrial processes will be automated or mechanical whereas all services will be provided online or remotely.

In our scenario, there is absolutely no doubt that as from April 1 the Telework Act will have to be applied, and even though it comes under criticism and reservations, this is the first piece of legislation in the entire history of labor law in Argentina that clearly legislates for the future.

Por Julián A. de Diego
Por Julián A. de Diego

Fundador y Titular del estudio “de Diego & Asociados”.  Abogado, Doctor en Ciencias Jurídicas.

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