Teleworking

Following the declaration of the calamity situation, within the scope of the COVID-19 pandemic, were published new measures, among which a new regime for teleworking and work organization stands out. Here are the new rules:

Councils with the greatest epidemiological focus

• Mandatory adoption of the teleworking regime, whenever the functions in question allow, under the terms of the law;

However, with the publication of Decree Law No. 94-A/2020, the Government has clarified the procedures for applying or not teleworking. Thus, as a rule, workers must be in telework, unless their functions do not allow it or the worker does not have the necessary conditions.

Under the terms of the new article 5.º-A of Decree Law 79-A/2020, when the employer understands that the functions are incompatible with teleworking, the employer must justify, delivering a statement to the worker. For a better understanding, at the end of this document follows a draft declaration, that must me completed with the reason, that apply on each and specific case.

The worker may, within three working days after the employer’s communication, request the ACT to verify the requirements.

If communication is made, ACT will assess the matter within a maximum period of 5 working days.

The above rules are not applicable to workers in educational establishments, the role of health professionals, security and rescue forces and services, including volunteer firefighters, and armed forces, workers in essential public services, management and maintenance of essential infrastructure, as well as other essential services.

Thus, the major change that was made in this matter relates to the need for the company to communicate that teleworking is not possible, justifying its decision.

Other municipalities

• Possibility of adopting the teleworking regime, under the terms set forth in the Labor Code, by agreement between the parties;
• Obligation, in the following situations, to adopt the teleworking regime, when, regardless of the employment relationship and whenever the functions in question allow, the worker expressly requires it:
  • • a) Worker covered by the legally enshrined exceptional protection regime for immunosuppressed and chronically ill patients, provided that such situation is proven by means of medical certification;
    • b) Worker with a disability or degree of disability equal to or greater than 60%;
    • c) Worker with a child or other dependent under the age of 12, or, regardless of age, with a disability or chronic illness, considered to be at risk and unable to attend face-to-face teaching and training activities;
    • d) Impossibility of the physical spaces and work organization complying with the guidelines of the General Directorate of Health and the Working Conditions Authority, to the strict extent necessary for compliance (eg physical distancing between workers).

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Regarding situations where it is not possible to adopt the telework regime under the terms provided for in labor legislation, specific work organization measures may be implemented, including:</p style=”text-align: justify;” p>

• Adoption of worker turnover scales between the telework regime and the work provided at the usual workplace, which can be daily or weekly; and
• Adoption of differentiated entry and exit times, as well as breaks and meals.

Draft statement

DECLARATION

Employer entity, with registered office in …, with a unique registration and legal person number …., declares, under the terms and for the purposes of n. 2 of article 5-A of Decree-Law no. 79-A/2020, of 1 October, as amended by Decree-Law no. 94-A/2020, of 3 November, that the worker ….., performs the functions of ….., which prove to be incompatible with being exercised in the telework regime, under the terms and with the foundations that go on to expose.

The exercise of this worker’s functions includes the execution of the following work: …….

In view of the above, it is considered that the work he provides requires that it be performed at the employer’s headquarters/or traveling to clients/is not consistent with the lack of physical presence of the worker in the company.

Performing the work in the usual place proves to be the most appropriate, therefore, this declaration is issued.

As this is true and necessary, this declaration is issued.

….., … from … 2020.