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8 abril 2021

The New Act on Telework Becomes Effective. Published in El Cronista

Act No. 27555 on Telework and its regulatory Executive Order No. 27/2021 have inexorably become effective since last April 1.

Article by Julián A. de Diego published in El Cronista on April 7, 2021

According to Resolution No. 142/2021 by the Department of Labor, any remote work arrangement affecting employees working from home, at-risk groups and those following the measures taken by their employer as a prevention to reduce the risks of infection shall not replace the written agreement under Section 7 of the Legal System for Telework Agreements as a meeting of the minds of the parties. This Resolution does not extend or change the effective date or actual application of the rule, or change the date of execution of the agreement under Section 7 of Act No. 27555.

The fact that there are different times to introduce changes has nothing to do with the undisputable circumstance that the Resolution has become effective since April 1, 2021 for all inhabitants across the country.

As a matter of fact, telework under a work-from-home arrangement has been caused by force majeure, referring to an unexpected event or to a foreseeable but unavoidable event (Section 1730 of the Civil and Commercial Code).

The Covid-19 outbreak has actually triggered a public health emergency, stay-at-home mandate, lockdown and shutdown of the economy that have never been seen before.

While the effects of the pandemic, the spread of the virus, sick people requiring specific medical assistance and eventual damages, including poor health for those already infected and even death, still continue, the State must take preventive actions; people must observe them at the individual level; and organizations must implement protocols aimed at containing the spread of the virus with good hygiene practices, social distancing and other measures until mass vaccination induces herd immunity, and the pandemic starts to fade out, together with its new variants.

This whole process takes place in a legal context of force majeure, which is not the responsibility of countries, organizations or even companies, and has become a sort of public enemy that should be combated with an army of doctors, nurses and assistants, who work in a position of inferiority while vaccination does not cover the population at large.

To a significant extent, work-from-home is the result of this state of silent war, affecting every aspect of daily life, again due to force majeure. This process will begin to fade out as health prevention measures, sanitization, vaccination and medicines against Covid-19 start to gain momentum.

The truth is that Act No. 27555 is now in full force and effect, and it is important to determine its degree of enforceability, considering that we are experiencing a second and third surge of Coronavirus right now. Many companies observe the Social Distancing mandate and keep work-from-home arrangements in place under the specific circumstances caused by force majeure.

It is worth mentioning that while there are unexpected or foreseeable but unavoidable events, such as the effects of the pandemic, exceptional conditions are still in place until the outbreak is definitely over. In other words, anything arising out of unexpected reasons or conditions cannot be definitive, and therefore work-from-home arrangements will start to fade out gradually and progressively when the force majeure causes under the current circumstances start to come to an end.

In this context, there are companies that can already determine the next step after a return to the new normal and are in a position to apply the Telework Act extensively.

There are others that may predict the stages, and set formulas for each of them combining in-person and remote work.

Other companies that keep work-from-home arrangements can only schedule special working hours for employees with caregiving responsibilities; reimburse electricity and Internet bills; enforce the right to disconnect; ensure the right to reversibility for employees who used to work on site; and provide hardware maintenance, repair and replacement services, and software and system support; safeguard the right to privacy protection and inviolability of the home; monitor the computer tools provided to employees and any means of communication such as email, text, audio or photo messages, social media in its different formats, and any other means that may be eventually created in the future.  

In any case, it is crucial to highlight that the telework system is intrinsically part of labor and employment law, and just requires a specific adaptation process. In fact, the process of transformation gets even faster and faster for competitiveness and productivity reasons, especially taking into account that the new economic order for those who survive the pandemic will lead them to explore alternatives based on new technologies. Work based on new technologies will gradually take center stage, and the whole body of laws will revolve around them.

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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