By Mercedes Balado Bevilacqua and Cecilia Acosta
In some Latin American countries, like Peru, Ecuador, and Colombia, remote working regulations were implemented before the covid-19 pandemic hit. Nevertheless, due to the spread of coronavirus, most governments in the region were forced to take measures to mitigate the impact of the crisis on local labour markets. One of these measures was the promotion of the home-office regime across all industries.
In an attempt to halt the spread of covid-19, on 19 March 2020, the Argentina government passed urgent decree No. 297/2020, the Mandatory, Social and Preventive Isolation for all Argentinian citizens and for all staying temporarily in the country. Therefore, as has happened in most countries around the globe, employers were forced to introduce remote work and drastically adapt their businesses.
Law No. 27,555, which establishes the home-office legal framework, was passed and partially regulated by Decree No. 27/2021. Although initially the effective date was not defined, this matter was resolved on 5 February 2021 by Resolution No. 54/2021, issued by the Ministry of Labor, Employment and Social Security. In accordance with such resolution, the home-office regime will enter into force on 1 April 2021. Meanwhile, companies are preparing themselves to comply with the provisions established by this law since the home-office regime has been proved to be an effective way of working.
Some of the most relevant aspects of these regulations are the following:
- Employees are entitled to the right to disconnect during time-off and leave periods.
- Employees caring for children under 13 years old, disabled people, or elderly adults with special needs, duly evidenced, have the right to perform their tasks during hours compatible with their care tasks and/or to interrupt their working day.
- A highly controversial point is the so-called “reversibility”, which implies employees’ consent to home-office working may be withdrawn at any time, and the employer is obliged to assign workers tasks in the offices again. In the event of an unjustified refusal, employees may consider themselves constructively dismissed and claim the corresponding severance compensations.
- Employers must provide employees with equipment, working tools, and necessary support for performing assigned duties, as well as afford all the installation, maintenance, repair costs, or reimbursement of the expenses related to the use of the employee’s own tools.
- The provision of working tools has no impact on the calculation base for any severance calculation or union/social security contributions. Furthermore, the guidelines for expenses determination may be agreed upon by the parties if the labour relationship is not under a collective bargaining agreement (CBA).
- If employees incur expenses to perform tasks, those expenses must be reimbursed by employers, and they will not be considered part of the employee’s compensation.
- It will be mandatory to inform the ministry of the software or platform to be used and the payroll that will render their services remotely. This information must also be sent to the corresponding trade union organisation.
Promoting work-life balance
Since the beginning of the pandemic, the government passed a decree forbidding terminations without cause, or suspensions for economic reasons or force majeure. Therefore, employers have had limited options through the crisis. Alternative measures were taken to reduce costs and protect the jobs. This was a challenge for employers, and for labour lawyers, who needed to be creative, balancing the needs and minimising the exposure of employers.
In Argentina, the aim of the remote working regulation is to benefit the employees’ mental and physical health and promote the work-life balance. Within this scheme, it seems like the old fixed-working schedule is changing to a more flexible one considering employees’ personal needs and, therefore, potentially evaluating performance through the accomplishment of goals rather than complying with a fixed working schedule. However, it seems fair that an employee should inform their employer about whether they need to take care of dependents so the employer may organise their business accordingly.
Within this new regulation, the employer’s duty to provide a healthy working environment will need to be reflected in employees’ homes. This means employers need to provide appropriate working tools and efficient connectivity so employees render services from home under efficient conditions and, also, make sure to report to the labour insurer (Aseguradora de Riesgos del Trabajo (ART)) so the employee is covered in case of labour-related accidents. Moreover, the ART will also need to adapt to this new modality.
Due to employee-friendly regulation in Argentina, a change in labour conditions require the employee’s consent. In this sense, implementing remote working will imply a modification of the employee’s essential labour conditions as it changes the employee’s working schedule and place. Therefore, if an employer unilaterally changes this regime, affected employees may consider themselves constructively dismissed – arguing that the unilateral modification of their labour conditions cause moral and/or material damages.
Remote work is here to stay
Given that a specific hygiene protocol is needed to physically attend the workplace, and that this protocol must be approved by the local health authority, the home-office regime has helped both companies and employees maintain employment relationships and deal with the economic crisis.
Government authorities, employers, and unions are facing a challenge to balance measures in the context of economic and social emergency caused by the pandemic and the protective nature of local labour regulations.
The pandemic has evidenced the need to update legislation since there still are some aspects of existing labour law that must be evaluated on to protect employee’s health without jeopardising the company’s business and with the aim of preventing the loss of jobs.
This new regime, along with several obligations for employers, has benefits for both parties. For employees, there is a positive aspect regarding the optimisation of time and salary, since they do not have to travel to and from the workplace. Additionally, this working-from-home regime implies the possibility to balance work and personal life, which is a highly positive aspect under the current circumstances.
For employers, there is an economic benefit that comes from greater employees productivity, since it has been proven that the risk of work-related illnesses and accidents decreases significantly when employees’ enjoy greater flexibility within their employment conditions, and also reduce the cost of renting large, fancy office space.
Mercedes Balado Bevilacqua is a founder and managing partner, and Cecilia Acosta a senior associate, at MBB Balado Bevilacqua Abogados