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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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

The Portuguese Labour Code established the legal regime for remote working, in particular teleworking, in 2003. This provided employers with a general framework for this kind of arrangement. During the covid-19 pandemic and its successive lockdowns, a vast array of legislation on telework was issued, given the specificity of the situation.

Back in March 2020, the teleworking regime could be unilaterally imposed by an employer or requested by employees, without the need for an agreement of the parties provided that it was compatible with the employees’ functions. Independent contractors were excluded from the scope of this regime.

Due to the evolution of the pandemic, it was then determined that teleworking should be mandatory, regardless of the employment relationship (including contractors), whenever employees’ functions allowed it. In this context, measures were also adopted to promote the compulsory implementation of teleworking within the scope of civil servants, whenever this was compatible with the functions being performed.

With the reduction in the number of covid-19 cases, in summer 2020 teleworking was no longer mandatory and the legal regime foreseen in the Portuguese Labour Code was solely applicable.

However, the increase of covid-19 infections led to the adoption of new measures in October 2020, which determined the promotion of teleworking whenever the nature of the activity allowed it. Considering the number of outbreaks, it quickly evolved to a point when teleworking became mandatory in the regions with a higher risk of infection.

It was only in November 2020 that teleworking was established as mandatory for companies that were the final users or beneficiaries of services provided by independent contractors, service providers and temporary employees.

After Christmas 2020 and with the new lockdown, teleworking once again became mandatory across the country. Despite a government announcement in March 2021 that teleworking would be mandatory until the end of the year, due to the success of the national vaccination programme teleworking ceased to be mandatory from 1 August 2021.

Council of Ministers Resolution No.181-A/2021 decreed mandatory teleworking between 25 December 2021 and 9 January 2022, which was then extended until 14 January 2022.

Other than this period of mandatory teleworking, at the end of 2021 Law No. 83/2021 was passed, which entered into force on 1 January 2022. This law modified the teleworking regime, introducing several changes to the Labour Code and to Law 98/2009 on work accidents and occupational diseases.

This new law states that provisions on equipment and systems; organisation, direction, and control of work; special obligations; privacy; and health and safety at work apply to all situations of remote work without legal subordination, but with economic dependence. The extension and scope of such obligations are unclear, but it is doubtful that this new teleworking regime was intended to accommodate “gig economy” workers and other independent contractors. It is more likely to have a residual character, to prevent situations where it is unclear if one is dealing with an employment contract or a service provision (eg, home workers), as this may change crucial rules on privacy or health and safety.

Last updated on 08/07/2022

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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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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

Until the pandemic, teleworking was used rather infrequently, and most Portuguese employers were not prepared – namely in terms of technology and data storage – to suddenly have their workforce almost entirely and permanently working from home or remotely.

For those reasons, teleworking mainly raised – and continues to raise – concerns regarding the employer’s capacity to ensure that information is protected and that it stays confidential despite being remotely accessed and processed. Remote working enhances security vulnerabilities, which can lead to data breaches.

We would also like to highlight the use of technological solutions that, on one hand, allow employers to exercise their powers of management and control over work performance, but that, on the other, do not violate the general rule prohibiting the use of remote surveillance to control employees' professional performances, or that do not cause excessive restrictions on employees’ private lives.

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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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

In terms of privacy, the teleworking regime establishes that employers must respect employees’ privacy and time with their families, as well as provide them with good working conditions, both physically and psychologically. This was made even clearer with the new teleworking law.

Whenever remote working is carried out at an employee's home, visiting the workplace should only be necessary to check work performance or equipment and can only take place during the employees’ working hours, in the presence of the employee or a person designated by the employee, with prior notice of at least 24 hours and the employee’s consent.

Regarding limits on employers monitoring employee activity, the Portuguese Labour Code prohibits the use of remote surveillance in the workplace to monitor the professional performance of employees.

Especially during the pandemic, when remote working and teleworking, in particular, were normalised, concerns arose regarding the limits of monitoring and how to adequately safeguard employees’ privacy.

On 17 April 2020, the National Data Protection Commission (CNPD) issued guidelines on remote control during teleworking, especially the need for monitoring working time and the fact that, in several companies, employees were using their own devices to work.

In these guidelines, the National Data Protection Commission clarified that, regardless of who owns the work equipment, under the teleworking regime employers retain powers to direct and control the execution of work by employees. However, since there are no special provisions on remote control during teleworking, the National Data Protection Commission believes that the general rule prohibiting the use of remote surveillance fully applies.

Therefore, technological solutions for remote monitoring of employee performance are not allowed. For example, software that, in addition to tracking working times, records websites visited; tracks equipment locations in real-time; monitors the use of peripheral devices; captures screenshots; records when access to applications is initiated; controls the document being worked on; or records the time spent on each task are all prohibited.

Please note that, during the pandemic, when remote working was most widespread, the National Data Protection Commission and Trade Unions reported a significant increase in employees’ complaints about illegal monitoring taking place.

Also, since Portuguese labour law imposes an obligation to register working time (eg, start, pauses, end of work time), in teleworking this can be done through technological solutions. Applications specially designed for this purpose are allowed provided data protection principles are respected.

Concerns regarding these technological solutions were partially addressed by the new teleworking law, which states that when controlling the performance, the employer must respect the principles of proportionality and transparency, notably the employer cannot impose a permanent connection on employees through image or sound.  Also, it is forbidden to capture and use images, sound, keystrokes, browsing history, or other information that may affect the employee's right to 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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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

Yes, under the new teleworking law employers are responsible for providing employees with the equipment and systems required for the performance of their work and employee-employer interaction. The teleworking agreement must indicate whether such equipment is directly provided by the employer or acquired by the employee with the employer’s approval regarding its characteristics and prices.

Furthermore, employers may define the usage conditions of the equipment in the teleworking agreement or the company's internal regulations; if the employer does not, it is assumed that there are no limits to the use of such equipment.

As mentioned above, under the general provisions on teleworking, employers should pay any extra costs related to teleworking. As specified by the new teleworking law, employers will fully reimburse all additional expenses that the employee incurs as a direct consequence of acquiring or using the equipment and computer or telematics systems necessary for the performance of the work, which includes any additional energy and internet costs, as well as the maintenance costs of the equipment and systems. Such reimbursement is considered, for tax purposes, a cost for employers and does not constitute income for employees.

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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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

The analysis of potential issues associated with cross-border remote working depend on whether employees are working in Portugal or abroad and if there are one or multiple employers involved and where they are located.

However, cross-border remote-working arrangements mainly raise issues regarding the definition of applicable law. The correct definition of the applicable law allows for compliance with labour and social security obligations that otherwise, if breached, pose significant risks to employers.

Even if there is an agreement through which the parties choose the applicable law, a set of mandatory provisions of Portuguese labour law would still apply if the work is mainly performed in Portugal, namely in key areas such as termination, health and safety obligations, and insurance for workplace accidents. Failure to correctly identify the applicable law may have serious consequences, for instance, employers may be entirely and solely responsible for all liabilities deriving from a work accident.

Furthermore, if in a given case the Portuguese labour law applies to the cross-border remote-working agreement, employers have to bear in mind that there are some difficulties regarding the definition of workplace and work time in connection with remote working, which can raise challenges when implementing these schemes.

Besides the above, cross-border remote working may also raise questions regarding work permits.

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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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

Teleworking employees have the same rights and obligations as any other employees, which implies that no reduction in salaries or benefits is admissible, in principle. Under Portuguese labour law, employers cannot reduce basic remuneration unless there is a demotion, which must be, in any case, expressly authorised by both the employee and the Authority for Working Conditions (ACT).

Reducing or cancelling any other payments to remote workers would be deemed discriminatory, and therefore illegal, except for situations where valid grounds could justify it.

Moreover, concerning reducing or suppressing benefits, the fact that benefits have been granted regularly over the years may lead to their qualification as acquired rights of the employees and part of employees’ remuneration, which would mean restrictions on the termination, reduction or alteration of such payments.

During the beginning of the covid-19 pandemic, there was debate over whether employees were still entitled to a meal allowance if they were teleworking, since the cause for payment would cease to exist (ie, employees would no longer be forced to spend money on out-of-home meals). However, the government clarified that, under the special compulsory teleworking regime (whenever the nature of the functions being performed was compatible with it), employees retain the right to a meal allowance, based on the principle of equal rights for on-site employees and teleworkers. It is now fairly and widely accepted that such meal allowances cannot be withdrawn based on the circumstances of teleworking employees.

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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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

No, vaccination against covid-19 is not compulsory in Portugal, not even for so-called risk groups such as medical personnel or social workers. For the time being, employers cannot force employees to be vaccinated or ask them to provide information on their vaccination status; they can only generally recommend vaccination. Without the Portuguese parliament passing a law making vaccination compulsory, no private or public entity can force its employees to get vaccinated.

Furthermore, to implement a compulsory policy, employers would most likely have to obtain vaccination certificates from their employees, which would be unlawful under the provisions on privacy and health data protection established in the Portuguese labour law.

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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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

Employers cannot require employees to provide information regarding their health – namely but not exclusively regarding their vaccination – except when it is strictly necessary and relevant to assess their suitability for work and the stated purpose is provided in writing to employees. Please note that even in such cases, health data would be provided to the occupational doctor – ie, not directly to the employer – who in turn can only communicate to the company an employee's fitness to perform their role.

Therefore, it is unlawful to make entry to the workplace conditional on employees having an optional vaccine such as covid-19, both from a labour and a data protection perspective. Such behaviour can be deemed a very serious breach of labour laws, leading to penalties, orders to cease such conduct, and damages under general civil law principles.

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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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

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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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

See question 9.

In addition to the rules for processing employee’s health data, from a personal data perspective, the processing of special categories of data (vaccination data qualifies as health data) is generally forbidden unless one of the exceptions foreseen in article 9 (2) of GDPR applies. Therefore, this processing would only be lawful if this data is necessary for preventive or occupational medicine or for assessing the working capacity of the employee.

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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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

According to the Portuguese Labour Code, teleworking employees have the same rights and duties as other employees, namely concerning working conditions, health and safety, and medical care arising from work accidents or occupational illnesses. Employers must also be mindful of the isolation of remote employees by ensuring regular contact with the company and other employees.

Employers are responsible for the identification and management of risks in teleworking and on-site work alike. When addressing the health and safety risks of remote working, employers must pay particular attention to psychosocial risks and ergonomic factors.

Employers must organise, in specific and adequate terms, and with respect for employee privacy, the means necessary to fulfil their responsibilities regarding health and safety at work. Employers must provide employees with good working conditions both physically and psychologically; and carry out occupational health examinations before the implementation of the teleworking policy, and annual examinations thereafter to assess the physical and mental aptitude of employees to perform their work, the impact of the activity and the conditions in which it is provided on their health, as well as any preventive measures that may be appropriate.

Employees must give access to the place they telework to professionals designated by their employer to evaluate and control the health and safety conditions at work, at a previously agreed time, between 9am and 7pm, and within the employee’s working hours.

Employers must also keep insurance companies informed of the specific workplace of remote or teleworking, to ensure that their policy will cover any work accident that might occur.

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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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

Before the pandemic, teleworking and remote working were rather infrequent, hence there was little guidance on what specifications should be considered in terms of health and safety at work when employees were not onsite.

When teleworking became mandatory during a large part of the pandemic, employers had to consider many new health and safety challenges: particular attention was paid to equipment and conditions at home, with many companies paying for office chairs, monitors, and other tools compatible with ergonomic standards. Also, due to the isolation and stress of successive lockdowns, employers enhanced their focus on mental health and well-being.

In terms of legal discussion, there was a significant debate around work accidents when employees are working remotely, due to the lack of specific provisions in the law.

With the new teleworking law, it was clarified that the legal policy for compensation for accidents at work and occupational illnesses applies to teleworking. The law considers the relevant ‘workplace’ to be the one chosen by employees to usually carry out their activities and ‘working time’ as all time during which, demonstrably, employees are working.

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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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

As far as Portuguese labour law applies to employment relations, health and safety obligations on employers are the same for employees working on-site, from home, remotely, or “mobile” employees, with the latter understood to be employees working in more than one place or travelling frequently as part of their job.

What differs is the evaluation of health and safety risks according to the specific circumstances of each employee (ie, even though the employers’ obligations are the same irrespective of the type of employee, the assessment and specific measures to be applied to ensure compliance will vary in accordance with the way each job is performed).

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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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

According to the Portuguese Labour Code, employers must provide good working conditions, both physical and mental. Health obligations should be understood holistically, encompassing both mental and physical health and wellbeing. Since these obligations apply to employers regardless of the type of employment relationship, they will also include teleworking and remote-working employees.

In practical terms, this implies that, when the health and safety services assess risks, they will identify and analyse those specific to the circumstance of not working onsite, such as stress, fatigue, or sedentariness.

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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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

During the pandemic, the government created a special and simplified lay-off system, aimed at maintaining jobs in companies that were totally or partially closed due to the imposition of the law. Under this system, employers could, in short, reduce the normal working time (daily or weekly) or suspend employment contracts.

Within this system, employers could reduce remuneration within certain limits: employees could earn at least two-thirds of their regular monthly remuneration, with a minimum amount of 635 euro in 2020 and 665 euro in 2021 and a maximum limit of 1,905.00 euro in 2020 and 1,995.00 euro in 2021.

Payments to employees were made by the employer, who received aid from Social Security corresponding to 70% of the costs. Employers were also exempt from social security contributions regarding employees under the simplified lay-off regime.

Other measures allowed for the reduction of salaries, namely extraordinary support for the progressive resumption of activity for companies with a temporary reduction of normal working times, which applied to companies not subject to facility closures, but that still had losses of 25% or more in a calendar month prior to the calendar month of the initial application or extension, compared with the same month of the previous year or 2019, or compared with the six-month average prior to that period.

Regarding the hours not worked under this scheme, employees were entitled to compensation of 80% of their gross pay paid by employers. If this sum represented a monthly amount lower than the employee's normal gross pay, the amount paid by Social Security would increase to cover the difference, capped at 1,995 euro.

Seventy per cent of the said compensation was borne by Social Security, with the employer responsible for the remaining 30%. Where the reduction in working time was more than 60%, Social Security support corresponded to 100% of compensation.

Please note that accessing these and other state support measures – not only labour and social security-based relief, but also some tax measures and tenancy benefits – meant employers could not terminate employment contracts based on collective or individual dismissal during the period they availed of said benefit and within 60 or 90 days after its end. Some support measures also forced employers to maintain current employment levels and limited, among other things, the right to terminate employment contracts by agreement (ie, in such cases, employers would have to repay the benefit that they were granted, either partially or entirely, depending on the situation).

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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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

Until the pandemic, unions in Portugal were not particularly focused on remote-working and teleworking employees or their working conditions and rights.

Nevertheless, during the pandemic, unions played an important role in shaping the contours and content of the special teleworking regime, namely through pressuring the government to address or clarify some key issues, such as the payment of meal allowances and other expenses to teleworking employees, but also to report some misconduct, such as illegal monitoring of teleworking employees.

Employers did not give unions a particularly relevant role in the adoption of covid-19 measures; the simplified lay-off regime meant there was a duty to consult with trade union delegates and workers’ councils, when applicable, but not to negotiate with the unions.

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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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

No, this level of intervention regarding remote-working and telework arrangements is not available to unions.

At the most, unions can ask for information on general teleworking regimes that employers may wish to agree with employees under the general guidelines of the Portuguese Labour Code, since unions are entitled to be informed about decisions that are likely to trigger substantial changes in the organisation of work or employment contracts.

Nonetheless, please note that collective bargaining agreements may introduce specific terms regarding teleworking and remote-working regimes.

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