Amendments to the Labour Code 2022
Article written by Telma Bacala ([email protected])
In the year 2022, 3 important changes to the labour code came into force, namely:
- Alterations to the Telework Regime – Subject regulated by Decree-Law no. 83/2021 of 6 December;
- Prohibition to contact workers outside of their working hours – Alterations regulated by decree-law no. 83/2021 of 6 December;
- Extending the period of justified absence in the event of the death of a relative or relative in the 1st degree of the direct line – Alterations introduced by Law no. 1/2022 of 3 January.
Workers will be entitled to teleworking as long as it is compatible with their duties and the employer is able to provide the necessary resources.
Importantly, the employer may not oppose the telework request in the following situations:
- if the worker has a child up to the age of three;
- if the worker has a child aged up to 8 years old in the following situations:
- a) when both parents meet the conditions to exercise the activity through telework, provided it is exercised by both parents in successive periods of equal duration within a maximum reference period of 12 months;
- b) single-parent families or situations in which only one of the parents can prove that they meet the conditions for teleworking. Workers who are victims of domestic violence if the conditions for transfer to another workplace have been met.
The decree-law mentions the obligation to have a Telework Agreement, this written agreement can be included in the initial employment contract or as a separate document.
Information to be included in this agreement:
- identification, signatures and domicile or head office of the parties;
- place where the worker will habitually carry out his work, which will be considered, for all legal effects, as his place of work;
- normal daily and weekly work period;
- working hours;
- contracted activity, with indication of the corresponding category;
- the remuneration to which the worker will be entitled, including supplementary and ancillary benefits;
- ownership of work instruments, as well as the person responsible for their installation and maintenance;
- periodicity and the way of concretization of the face-to-face contacts that will be regulated (if not stipulated on the agreement it will be assumed that the periodicity will be every 2 months.) This reduces the isolation of the worker.
If the proposal of teleworking agreement comes from the employer, the opposition of the employee does not have to be justified and the refusal cannot constitute grounds for dismissal or the application of any sanction.
If the employee proposes that his activities be carried out under the telework regime and presents all the conditions for such, the agreement presented by the employee may only be refused by the employer in writing and stating the reasons why he did not approve the request.
The telework agreement can be concluded for a fixed or indefinite period.
If you opt for a fixed term, it should be noted that it cannot have a duration exceeding 6 months, being subsequently renewed for equal periods. If any of the parties wish to terminate the telework agreement, they must deliver a declaration stating their intention not to renew the agreement 15 days before the end of the term.
By opting for the open-ended agreement, either party may terminate the agreement by written notice, which shall take effect on the 60th day thereafter.
When the teleworking agreement is terminated within the scope of an employment contract of indefinite duration, or whose term has not been reached, the worker resumes the activity in a face-to-face regime, without prejudice to his category, seniority and any other rights recognized to workers in a face-to-face regime with identical functions and duration of work.
Work equipment and worker-employer interaction
According to the decree-law, it is the employer’s obligation to provide the worker with the necessary means to carry out his activity. As well as the necessary equipment for daily contact with the company.
It should be registered in the telework agreement, if the equipment is supplied by the employer or if it should be acquired by the employee, in which case it is necessary to have an agreement with the employer concerning the characteristics of the equipment as well as the price.
The employer shall compensate in full – and with payment due immediately afterwards – all additional expenses incurred by the worker as a direct consequence of the acquisition or use of equipment and computer or telematics systems necessary for the performance of the work, including:
- increased costs of energy and of the network installed at the workplace at a speed compatible with the service communication needs; and
- maintenance costs of the same equipment and systems.
Additional expenses are those corresponding:
- the acquisition of goods and or services which the worker did not have before the conclusion of the teleworking agreement; and
- those determined by comparison with the worker’s yearly expenses in the same month of the last year prior to the implementation of that agreement.
For tax purposes, compensation of such expenses to the employee is considered a cost to the employer and does not constitute income of the employee.
The employee may use the employer’s equipment and systems beyond the needs of the service, unless this is expressly conditioned. If not, the application of any sanction by the employer constitutes a serious administrative offence.
It is important to mention that workers covered by the telework regime have exactly the same rights and duties as face-to-face workers.
Namely in relation to training opportunities, career promotion, compliance with working hours (maximum daily hours, rest periods), holiday and Christmas bonus, health and safety at work, access to work accident insurance, among others.
How does Health and Safety at Work function in this regime?
Occupational safety and health in the context of telework will be regulated in the Labour Code, which will include accidents at work and occupational diseases. The compensation scheme for accidents at work and professional illnesses has been amended for this purpose.
The legal regime for compensation for accidents at work and occupational illnesses applies to telework situations.
The place of work is considered to be the place chosen by the worker to habitually carry out his activity and working time is considered to be all the time during which, it can be proven, he is providing his work to the employer.
It is a very serious offence for an employer to break the rules.
Is the responsibility of the employer:
- organize the necessary means to fulfil its responsibilities in terms of health and safety at work, in specific and appropriate ways, respecting the worker’s privacy, namely minimum safety and health requirements regarding work with display screen equipment.
- promote the carrying out of occupational health examinations before the implementation of teleworking and, subsequently, annual examinations to assess the worker’s physical and mental aptitude to carry out the activity, the impact of the activity and the conditions in which it is provided on their health, as well as the preventive measures that are deemed appropriate.
The worker is expected to:
- Provide access to the workplace to the professionals designated by the employer who are legally responsible for the evaluation and control of occupational safety and health conditions, during a previously agreed period, between 9 a.m. and 7 p.m., within working hours.
What is perceived as an accident at work?
The perception of what is considered an accident at work has changed to encompass the telework regime.
An accident at work is one which occurs at the workplace and during working hours and which directly or indirectly causes bodily injury, functional disorder or illness resulting in reduced working or earning capacity or death.
In the case of telework or distance working, the place of work is considered to be the one set out in the telework agreement.
Prohibition to contact workers outside of their working hours, how to manage this?
The employer has the duty to refrain from contacting the worker during the rest period, except in situations of force majeure. Any less favorable treatment given to an employee, namely as regards working conditions and career progress, because of exercising the right to a rest period, constitutes discriminatory action by the employer.
Worker’s privacy: the employer must respect the worker’s privacy, working hours and family rest and relaxation times. It must also provide the worker with good working conditions, both from the physical and psychological point of view. When telework is carried out at the worker’s home, the visit to the workplace requires:
- 24 hours’ notice + worker’s agreement;
- Single objective of control of work activity and work instruments;
- Be carried out in the presence of the worker and during the agreed working hours.
It is forbidden the capture and use of images, sound, writing or history, or the use of other means of control that may affect the worker’s right to privacy, on pain of a very serious offence.
Extending the period of justified absence in the event of the death of a relative, direct line or relative in the 1st degree of the direct line
This law extends to 20 days the period of mourning in the event of the death of a relative, direct line or relative in the 1st degree of the direct line, amending the Labour Code, approved by Law No. 7/2009 of 12 February.
Article 251 of the Labour Code reads as follows:
1 — […]
- Up to 20 consecutive days, due to the death of a descendant or relative in the 1st degree in the direct line;
- Up to five consecutive days, due to the death of a spouse not separated from people and property or of a relative or relative in the ascending 1st degree in the direct line;
- [Previous line b).]
2 — The provisions of paragraph b) of the previous number shall apply in the event of the death of a person living in a de facto union or common economy with the employee, as provided for in specific legislation.
3 — […]» Article 3.
In the event of the death of a child or a relative in the first degree of the direct line, both parents are entitled to request psychological counselling from the attending physician at a National Health Service establishment, which must begin within five days of the death. This right is also guaranteed in the event of the death of close relatives, namely spouse and ascendants.
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