New Ways of Working

Explore and keep track of key legal and compliance considerations for multinational employers as new ways of working become increasingly embedded as the pandemic begins to recede. Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.

Choose countries

 

Choose questions

Choose the questions you would like answering, or choose all for the full picture.

01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

Flag / Icon

Argentina

  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua

Yes, the government has introduced the home-office framework through Law No. 27,555 (the Law or home office framework regime), on 14 August 2020. The Law came into force on 1 April 2021.

The main objective of this Law is to determine the legal framework applicable to remote working. In this sense, specific regulations related to each activity will be determined by the particular Collective Bargaining Agreement (CBA) governing each industrial and commercial activity.

The home office framework will not be applicable when the labour relationship is performed:

  • as a result of national temporary regulations issued to prevent the spread of the covid-19 virus and specific measures taken by employers to avoid the spread of such virus and guarantee a safe work environment;
  • in the premises, dependencies or branches of clients to whom the employer provides regular services; and
  • in the employer's home, either at their request or due to some exceptional circumstance.

To make an effective home office framework, employers and employees must sign a written contract. In addition, the home office legal framework may apply to all categories of employees and “gig” employees, but not independent contractors.

Last updated on 21/09/2021

02. Outline the key data protection risks associated with remote working in your jurisdiction.

02. Outline the key data protection risks associated with remote working in your jurisdiction.

Flag / Icon

Argentina

  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua

There is no specific statutory regulation on this matter related to employees under the home office framework. However, it is advisable to create a clear general policy on data protection or include in employment agreements provisions regarding data protection in order to clarify to employees the extent of their obligation. We recommend executing those documents in Spanish, due to the protective nature of local labour law; if there is a conflict with employees, a labour court is likely to dismiss all documents in a foreign language.

As a result, the Personal Data Protection Law (PDPL), Law No. 25,326, establishes the full protection of personal information recorded in personal files, registers, banks or other technical means of data storage and processing. Therefore, employers must comply with the PDPL and take steps to ensure that this law applies throughout their organisation.

The main aspects of the PDPL are:

  1. The purpose of collecting employee data must be communicated to employees and written consent needs to be obtained.
  2. However, consent is not required if the data has been obtained from a public source; collected for the performance of the state’s duties; consists of lists limited to name, ID number, tax or social security identification, occupation, date of birth, domicile and telephone number; or arises from a contractual relationship, either scientific or professional, of the data owner, and are necessary for its development or fulfilment.
  3. In addition, this Law establishes the employee’s right to access and modify any incorrect or false information. Furthermore, the collection of information related to an employee’s private life is permissible as long as the information collected complies with the following requirements: it is not used for discriminatory purposes; it does not violate the individual’s right to privacy; and it is reasonably used.
  4. When an employer requests personal data from an employee, they must be notified in advance and in an express and clear manner about: the purpose for which the data needs to be processed, and who can use such data; the existence of the relevant data file or register, whether electronic or otherwise, and the identity and domicile of the responsible person; the compulsory or discretionary character of the information requested; the consequences of providing the data, of refusing to provide such data or if it is inaccurate; and the data owner’s rights to data access, rectification and suppression.
  5. Indeed, the processing of personal data requires express consent from the data owner, which must be accompanied by appropriate information, prominently and expressly explaining the nature of consent sought. This can be achieved by the employee signing a general consent form on entering employment. However, consent may be withdrawn by an employee.
  6. Various restrictions apply to the disclosure of personal data to third parties. This is generally only allowed if it is in the legitimate interests of the database owner (eg, the employer) and the data owner (eg, the employee) has consented. This consent can be revoked at any time by the data owner.
  7. The transfer of personal data to another country – which does not guarantee a proper level of data protection – is forbidden. Nevertheless, such prohibition is not applied when the individuals, whose personal information is intended to be transferred, give their express written consent.

All data regarding employees’ health is sensitive information, so the employer must get the express authorisation of the employee for any transfer of such date, and employers should stop or restrict the transfer to other companies or its employees that lack sufficient clearance to deal with health information, including covid-19 information.

Last updated on 21/09/2021

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

Flag / Icon

Argentina

  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua

Regarding any monitoring system designed to protect an employer’s goods and data, the home office framework states that union participation is required to protect employees’ right to privacy.

Such union participation will be guaranteed through joint audits that include professionals selected by the union and the company. The confidentiality of the data processing of the employees involved must be guaranteed. Union participation will be limited to preserving employees’ rights under the home office framework.

Employer must take corresponding measures, especially regarding the software used, to protect any data used and processed by employees who are under the home office framework. In addition, it is forbidden to use surveillance software that violates employee privacy.

Last updated on 21/09/2021

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

Flag / Icon

Argentina

  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua

Employers must provide employees with equipment, working tools and the necessary support for performing their duties, as well as meet all the installation, maintenance and repair costs related to the use of an employee’s own equipment.

If employees incur higher expenses related to the connectivity required to perform their duties, those expenses must be reimbursed by employers.

The provision of equipment is not considered a part of compensation and, therefore, they must not be included in calculations for any severance payments, or union or social security contributions. The guidelines for determining these costs may be agreed upon by the parties if the labour relationship is not under a CBA.

In addition, according to Resolution No. 1522/2012 issued by the Labor Risks Superintendent (SRT), employers must provide the following to home workers: one ergonomic chair; one portable fire extinguisher; one first aid kit; one mouse pad and one Manual of Good Health Practices in the home office (however, this Resolution does not apply if the home-working arrangement is implemented due to the covid-19 health emergency).

Last updated on 21/09/2021

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

Flag / Icon

Argentina

  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua

The potential issue that employers may have regarding cross-border remote-working arrangements is that Argentine labour law is mandatory and it establishes minimum rights that may not be waived, even by agreement of the parties. Therefore, if a multinational company wants to impose its home office framework in all jurisdictions where it has offices, it will face considerable legal exposure if it does not follow Argentine remote work regulations.

In this regard, for cross-border provision of services, the regulation that applies will be the one in force in the jurisdiction where the services are being rendered or the applicable law where the employer is based, depending on which is more favourable to employees.

Also, when hiring foreign nationals who do not reside in Argentina, the home office framework establishes that prior authorisation must be requested from the Ministry of Labour (ML). Moreover, considering the particular situation of each activity, applicable CBAs must establish a maximum limit for these types of hires (this last aspect is pending regulation).

Last updated on 21/09/2021

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

Flag / Icon

Argentina

  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua

The home office framework establishes that teleworking employees have the same rights and duties as those working at an employer’s main offices (including union rights), and their salary must not be less than what they would receive if they worked at an employer’s offices. Therefore, once employees are assigned to remote working, their compensation cannot be reduced due to this change.

In general terms, employers have the right to redesign or reassign job responsibilities. Such a right is known as an employer’s right to modify labour conditions (Ius Variandi). In this sense, local laws allow unilateral amendments to terms and conditions of the employment contract provided they do not adversely affect essential labour conditions and do not cause any moral or material damage to the employee and the changes are reasonable. 

As a result, if an employer unilaterally decides to reduce the salaries or benefits of remote workers, and the change is considered to be unreasonable, resulting in material or moral damage to the employee involved, he or she can file an injunction to restore the original conditions of employment. If the employer refuses to do so, the employee may claim constructive dismissal and file for severance compensation and any applicable fines. According to Decree No. 886/2021, an obligation to increase the severance compensation remains in force until 30 June 2022, in cases where an employee is dismissed without fair cause or claims constructive dismissal, according to the following parameters:

a)    75% increase if the dismissal is carried out between 1 January and 28 February 2022; 

b)    50% increase if the dismissal is carried out between 1 March and 30 April 2022; and 

c)    25% increase if the dismissal is carried out between 1 May and 30 June 2022. 

Such increases must be calculated taking the following into account: seniority; prior notice; and days remaining of the month of termination, and will not apply to employees hired after 14 December 2019 or the national public sector. Currently, the maximum cap amount is 500,000 Argentinian pesos.

Last updated on 24/01/2022

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

Flag / Icon

Argentina

  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua

The covid-19 vaccine has not yet been included in the National Vaccination Program (NVP); therefore, it is not mandatory for Argentine citizens in any industry. In addition, there are no proposals to make the vaccine compulsory in any industry, so employers may not compel their employees to receive a covid-19 Vaccination.

However, Resolution No. 4/2021 establishes that employees who choose not to be vaccinated must act in good faith and do everything they can to reduce any health risk their decision may cause to employers. In this sense, if an employee may not or does not want to be vaccinated (it is voluntary), employers should offer an alternative to office working, such as working from home. Moreover, if an employer does not allow unvaccinated or untested employees to enter their premises and does not offer any other alternative, those employees may argue the existence of a discriminatory action on the employer´s side or arbitrary modification of  labour conditions causing potential liability for the employer.

In addition, the following provisions apply regarding vaccination:

  1. employees may act in good faith and provide reliable proof of vaccination, or state (in an affidavit) the reasons why they were not able to access the vaccination, as applicable;
     
  2. employers may request that all employees (regardless of their age and risk condition) return to their workplace if they have received their first dose (at least) of any approved covid-19 vaccine and 14 days have passed since that dose;
     
  3. the Resolution clarifies that the following employees (who were previously exempted from the duty to attend to their workplace) are included in the scenario mentioned in point b: people over the age of 60; pregnant employees; and People included in risk groups;
     
  4. health employees with a high risk of exposure may only be summoned 14 days after completing the vaccination schedule in its entirety (both doses); and
     
  5. in both scenarios (points b and d), the following individuals are still exempt from attending the workplace, even after vaccination: immunodeficient patients; oncological patients; and transplant recipients.
Last updated on 24/01/2022

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

Flag / Icon

Argentina

  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua

As mentioned in questions 7 and 8, Resolution No. 4/2021 established that employees who choose not to be vaccinated must act in good faith and do everything they can to reduce the health risks their decision may cause to employers. Therefore, employers may limit entry to the workplace to employees who have received a COVID-19 vaccination. Please bear in mind the recommendations mentioned in questions 7 and 8 above.

Last updated on 21/09/2021

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

Flag / Icon

Argentina

  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua

The government has implemented the “Health Pass” at a national level, as of 1 January 2022 (through Administrative Decision No. 1198/2021). The Health Pass will be required for individuals aged 13+  attending places where the following activities are held: (i) group travel (graduates, students, retirees); (ii) indoor discos or dance clubs; (iii) indoor social event places; and (iv) events with an attendance of more than 1,000 people (indoor or outdoor). The Health Pass must be evidenced with the mobile application “Cuidar” or with a vaccination certificate in a paper or digital format issued by the Health Authority.

The vaccination schedule must be completed at least 14 days before attending the activity or event.

In addition, each jurisdiction will also be allowed to require a vaccination card for other activities, depending on the epidemiological situation, the local vaccination plan and the progress in vaccination coverage.

Last updated on 24/02/2022

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

Flag / Icon

Argentina

  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua

According to Resolution No. 4/2021, employees may present a reliable proof of vaccination, or state (as an affidavit) the reasons why they were not able to take a vaccine, as applicable. Therefore, employers are entitled to enquire about an employee’s vaccination status (even though it is considered sensitive data according to PDPL).

However, employers may not use this information to discriminate between employees, as this may expose the employer to potential claims and, eventually, constructive dismissal liability.

In addition, employers may collect and store such documentation according to the provisions established in PDPL (please see question 2 above).

As mentioned previously, it is recommended that employers request the information in Spanish to avoid unnecessary misinterpretation. If the employee does not speak Spanish, it is also recommended that a dual language is used. The Spanish version will always prevail in the event of a dispute.

Last updated on 21/09/2021

12. What are the key health and safety considerations for employers in respect of remote workers?

12. What are the key health and safety considerations for employers in respect of remote workers?

Flag / Icon

Argentina

  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua

Employers must notify the corresponding labour risk insurer (ART) about any employees that work remotely to ensure that in the event of an accident or illness the ART will provide cover. ARTs must determine new policies addressed to the home-office framework to control and verify the conditions under which remote work is undertaken and to indemnify remote workers. 

In addition, the ML must research the applicable hygiene and safety conditions. If an employee under the home office framework suffers an accident at home, it will be considered a work-related accident and will be covered by the corresponding ART, if the accident: took place where the employee has disclosed they are working from; it occurred during their working day; and it happened while they were working.

Last updated on 21/09/2021

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

Flag / Icon

Argentina

  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua

Please see question 12.

Last updated on 21/09/2021

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

Flag / Icon

Argentina

  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua

Employers’ health and safety obligation are the same in all cases. The difference is that, for employees under the home office framework, employers may disclose to the ART the employees’ information (name, address, identification code and working time), and the other aspects mentioned in question 12. If there an inspection of an employee’ home to assess the level of safety, union participation is required.

Last updated on 21/09/2021

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

Flag / Icon

Argentina

  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua

Employers have a general duty of safety and security, which includes a responsibility to provide a healthy and safe working environment free from hostility, and this includes employees under the home office regime.

For that reason, and due to the protective nature of local labour law, if an employee’s mental or physiological health suffers as a result of such hostility, a court may determine the employer is responsible, unless the employer provides evidence of having taken all necessary measures to address the hostility in question, in compliance with their duty of safety.

Last updated on 21/09/2021

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

Flag / Icon

Argentina

  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua

Employers were limited  in making changes to their organisations until 31 December 2021 because since the covid-19 outbreak, terminations without cause, regular terminations, terminations based on a scarcity of work, and suspensions due to force majeure or scarcity of work were forbidden since 31 March 2020. Such measures are not in force anymore, because Decree No. 413/2021expired at the end of 2021. Therefore, since 1 January 2022, employers have the power to dismiss and suspend employees without fair cause.

However,  according to Decree No. 886/2021, the obligation to increase the severance compensation remains in force until 30 June 2022, in cases where an employee is dismissed without fair cause or claims constructive dismissal, according to the parameters mentioned in question. 6.

Last updated on 24/01/2022

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

Flag / Icon

Argentina

  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua

Regarding the role of unions to protect the entitlements and rights of telecommuting workers, the home office framework establishes privacy and other rights regarding monitoring systems; please refer to question 3.

Last updated on 21/09/2021

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

Flag / Icon

Argentina

  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua

In cases where the home office framework is agreed upon at the beginning of the relationship, it must be carried out after consultation with a union representative.

Last updated on 21/09/2021