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.

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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?

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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 13/07/2022

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United States

  • at Littler
  • at Littler
  • at Littler

Yes, many states have passed laws that recognise remote-working arrangements. This includes laws concerning employee reimbursement of costs relating to remote work, workers’ compensation, tax, timekeeping and meal breaks, data privacy, and providing accommodation.  Because companies may be legally considered to be employers or “co-employers” of consultants and contractors, these rules may also apply to non-employees.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

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.

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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 13/07/2022

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United States

  • at Littler
  • at Littler
  • at Littler

Data privacy rules vary from state to state. Remote work, in particular, raises issues where employers have less control over the working environment and employees are potentially accessing sensitive information in their home that they share with others.  Employers should ensure that employees working remotely can demonstrate that their location provides sufficient privacy, security, and safety to secure the confidentiality of the employee’s work, company information and materials.  Additionally, health-related data must be protected and employers should be required to protect trade secrets and other confidential data. Employers must also maintain reasonable security measures to protect sensitive personally identifying information. 

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

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?

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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 13/07/2022

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United States

  • at Littler
  • at Littler
  • at Littler

Monitoring and surveillance laws vary from state to state, and there are also, potentially, tort and criminal laws regarding invasion of privacy that must be considered where the employee has an expectation of privacy.  While audio or key-stroke monitoring may be minimally intrusive, video surveillance is almost always problematic. Some states require only one-party consent for audio monitoring, but others require that all the parties to a conversation consent to such monitoring.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

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)?

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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 covid-19.

Last updated on 13/07/2022

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United States

  • at Littler
  • at Littler
  • at Littler

There is a patchwork of various state laws, either by judicial decision or statute, affecting expense reimbursement, particularly in instances involving mandatory remote work as opposed to remote work requested by the employee. Ascertaining expense reimbursement obligations is one of the most challenging aspects of implementing a compliant teleworking arrangement. Some states do not require reimbursement of work equipment, internet, etc, while others, such as California, do require reimbursement of “all necessary expenditures.”

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

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?

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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 13/07/2022

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United States

  • at Littler
  • at Littler
  • at Littler

Employees who cross state borders trigger a host of risks for their employer. The obligations of the jurisdiction where the work is performed will generally prevail (depending upon duration).  For example, state law, and even municipal law, control employers’ leave obligations (such as time off to vote, paid family leave, or paid sick leave).  With paid sick leave, this can become very complicated, as each law has different tracking, recordkeeping and accrual requirements. In addition, state withholdings and income tax, as well as insurance (workers compensation), must be considered.  Local ordinances often also control wage-and-hour issues such as how and when an employee must be paid, pay-statement requirements, whether an exemption applies or overtime must be paid, and other nuanced areas such as required employer policies, or notices relating to wages or unemployment insurance.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

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?

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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.

Last updated on 13/07/2022

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United States

  • at Littler
  • at Littler
  • at Littler

Most jurisdictions in the US have at-will employment, so that with appropriate advance notice, salaries and benefits of at-will employees can be reduced without issue (ie, assuming no contract and the pay does not fall below the threshold for minimum wage or to maintain any particular exemption).  However, as with any workplace policy, the law mandates that selection for wage reduction be without regard to protected status such as race, age or disability. Thus, there may be an exposure to risk of claims to the extent that those who work remotely are seeking an accommodation or there is a potential for disparate impact.  Thus, employers should ensure that there is no "disparate impact" on any protected status that is required to work remotely.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

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?

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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. in case an employee needs to work remotely (and not in-person) due to a health issue, he/she must present a health exam certificate as evidence. The exception to this rule is when both parties agree to the remote working modality.
Last updated on 13/07/2022

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United States

  • at Littler
  • at Littler
  • at Littler

Federal anti-discrimination laws don't prohibit employers from requiring all employees who physically enter the workplace to be vaccinated for covid-19, accommodations must be made for those with religious objections or a disability.  Another option is to consider having employees show vaccination proof or submit to weekly covid-19 testing, wear masks, and keep physically distant from other workers and visitors.  Employers can also encourage and incentivise employees to get vaccinated by offering prizes, developing vaccination education campaigns, offering vaccinations on-site, covering any costs that might be associated with getting the vaccine, or providing paid time off for employees to get the vaccine and recover from any potential side effects. However, state lawmakers have introduced dozens of legislative proposals to make it harder for employers to require that employees get a covid-19 vaccine.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

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?

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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 13/07/2022

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United States

  • at Littler
  • at Littler
  • at Littler

While federal anti-discrimination laws don't prohibit employers from requiring all employees who physically enter the workplace to be vaccinated for covid-19, accommodations must be made for those with religious objections or a disability through alternative measures. Those can include getting tested weekly or working remotely.  In addition, state law is rapidly evolving in this area and we have seen a steady increase in worker lawsuits that are filed on the basis that treating unvaccinated people differently is discriminatory or unlawful. 

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

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?

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Argentina

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

No, there are not.

Last updated on 13/07/2022

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United States

  • at Littler
  • at Littler
  • at Littler

Yes, this includes the healthcare industry, as well as some federal and municipal agencies.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

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?

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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 13/07/2022

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United States

  • at Littler
  • at Littler
  • at Littler

With limited exceptions, the Americans with Disabilities Act requires employers to keep confidential any medical information they learn about any applicant or employee. Medical information includes not only a diagnosis or treatment, but also the fact that an individual has requested or is receiving a reasonable accommodation. In addition, employers must maintain reasonable security measures to protect sensitive personally identifying information.  Specific data privacy rules vary state by state.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

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?

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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 13/07/2022

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United States

  • at Littler
  • at Littler
  • at Littler

The OSHA governs the relationship between employers and employees with respect to workplace health and safety, and provides employer mandates regarding possible hazards in the traditional workplace. The key issues in work from home safety revolves around ergonomics. But the law recognises that employers have limited direction and control over the employee’s residence or other remote locations such as coffee shops, public libraries and so forth.  Nevertheless, employers have in many instances required employees to commit to keeping a safe workplace in their home and wherever they may work.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

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?

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Argentina

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

Please see question 12.

Last updated on 13/07/2022

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United States

  • at Littler
  • at Littler
  • at Littler

With covid-19, the focus has shifted from workplace injury to workplace illness. Thus, the obligations have been expanded in that employers have had to think about exposures both inside and outside the workplace, and establishing safety protocols to help prevent employees from bringing the hazard into the workplace. 

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

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?

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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 is an inspection of an employee’s home to assess the level of safety, union participation is required.

Last updated on 13/07/2022

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United States

  • at Littler
  • at Littler
  • at Littler

Yes.  Employees who as part of their job travel, visit customers and clients, and go from place to place, may be exposed to health and safety conditions that are beyond their employer’s control.  Nevertheless, employers need to take reasonable steps to keep their employees safe, even when they are outside the brick-and-mortar workplace.  The employer’s obligations to ensure their workers’ safety follows them as they travel for work, and, to the extent feasible, employers need to anticipate and mitigate against potential risks. On the other hand, employees who work from home are less likely to be exposed to these kinds of hazards, and the employer’s responsibility for the safety of employees who work from home is far less than for mobile workers or, of course, on-site workers. 

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

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?

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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 13/07/2022

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United States

  • at Littler
  • at Littler
  • at Littler

This is not an area that has been a priority in the United States, particularly if the employees are remote. However, this will likely be a developing area in the future that employers will have to consider in light of the changes being brought about by the pandemic.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

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?

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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.

In addition, the Government established the obligation to pay an increase of the severance compensation in cases where an employee was dismissed without fair cause or claims constructive dismissal, but this measure is not in force anymore as of 1 July 2022. (This is due to the fact that Decree No. 886/2021 was not extended; it was valid through 30 June 2022.)

Last updated on 13/07/2022

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United States

  • at Littler
  • at Littler
  • at Littler

The pandemic has caused many companies to have to re-evaluate employee salaries and wages, and to make staffing changes. Where required by collective-bargaining agreements, these changes have resulted in bargaining with unions.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

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?

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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 13/07/2022

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United States

  • at Littler
  • at Littler
  • at Littler

Unions are criticising company responses (especially the lack of paid leave, sufficient staffing, and a process to address employee safety concerns) in recent organising efforts. The best thing non-union employers can do to avoid union drives of this nature is to be transparent. Employers should develop and communicate a covid-19 response that is compliant with state or federal mandates and “best practice” recommendations, be as flexible as is reasonably possible in balancing the interests of employees and the business, and regularly update employees.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

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)?

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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 13/07/2022

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United States

  • at Littler
  • at Littler
  • at Littler

Unionised employers may unilaterally implement a policy requiring employees to work from home if the applicable collective bargaining agreement contains language granting the employer the right to implement such a requirement. Unilateral action also would be permissible if a local, state or federal law mandates working remotely for certain classifications for employees. Even in that case, however, the employer would still have an obligation to bargain over any discretionary aspects of the policy, such as:

  • classes of employees subject to remote work (unless specified by the order);
  • frequency and timing;
  • consequences of an employee’s refusal; and
  • where the remote work will be performed.

Other provisions in a collective bargaining agreement may cede control over the situation to the employer. For example, the CBA may include a “management-rights provision” which permits the employer to operate and manage the workplace, require standards of performance, implement improved operational methods and procedures, or promulgate rules, regulations and personnel policies.  Even if the clause does not explicitly address the issue of working from home, it may be argued that the union has waived its right to bargain over the matter. 

Employers with union-represented employees need to carefully review existing collective-bargaining agreements to determine whether there is sufficient management rights language that would permit an employer to mandate working from home as a condition of employment.

Furthermore, to the extent an employer seeks to avoid a bargaining obligation by claiming that working from home is consistent with a local, state, or federal law or regulation, it will need to show that it is actually mandated by the law to require this.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021