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What are employers’ basic responsibilities when it comes to telework?

At European level, telework is regulated through the framework directive and other directives relating to working conditions (such as the Working Time Directive) and occupational safety and health (OSH). But despite this, there is no single, specific piece of legislation in the EU directly related to telework. Instead, it is regulated at national level through statutory legislation, social dialogue, and collective bargaining.

At the heart of the European approach to teleworking, however, is the EU Framework Agreement on Telework, an autonomous agreement between social partners formulated in 2002. The document provides a definition of telework as a “form of organising and/or performing work, using information technology, in the context of an employment contract/relationship, where work, which could also be performed at the employer’s premises, is carried out away from those premises on a regular basis.” In addition, it offers a clear, albeit general, overview of employers’ pre-pandemic responsibilities to teleworking staff.

These responsibilities include ensuring that the teleworker benefits from the same rights as on-site workers, while also taking into account the particularities of teleworking. It also underlines the fact that the employer is responsible for the teleworkers’ occupational safety and health, especially when it comes to working conditions and the use of tools such as VDUs. The agreement makes it clear that teleworkers are entitled to request inspection visits, to ensure that their working space is fit for purpose and ergonomic. It also establishes basic rules around aspects such as work organisation, training, data privacy and equipment.

How have employer’s legal responsibilities changed recently?

Although the conversation surrounding the right to work from home has been gathering pace for a number of years, with countries such as France, for example, introducing a legal right to disconnect in 2016, the new circumstances following the Covid-19 pandemic and the resulting wave of teleworking lead to a review – and tightening – of teleworking regulations. By March 2021, five countries had implemented legal changes (Italy, Luxembourg, Latvia, Slovakia and Spain) and many others were reviewing their national legislation on the topic, including Austria, Belgium, Cyprus, Croatia, Hungary, Ireland, Germany, Malta, Poland, Portugal and Slovenia. In the Netherlands, the Flexible Working Act was under evaluation by law, and this review therefore also considered changes to teleworking regulation brought on by the circumstances of the pandemic.

These agreed or proposed changes to national regulations concerning telework can be grouped into four main categories:

• the legal definition of what telework encompasses
• the right to telework (including duration and frequency of teleworking)
• the right to disconnect during periods of rest and the ability to ensure a healthy work-life balance while teleworking
• specific OSH provisions, including the responsibility of the employer to ensure that the teleworking station is ergonomic and helps to prevent the development or aggravation of a musculoskeletal disorder (MSD)

Beyond these categories, the changes to national legislation vary from country to country. In Spain, for example, the Royal Decree Law 28/202029, reinforced the employee’s right to disconnect and strengthened workers’ rights when it comes to the ergonomic, psychosocial and organisational aspects of teleworking. Spanish employers are now obliged to carry out risk assessments of the workers’ teleworking space and ensure that it is free from any risks which could cause or aggravate an MSD.

Ireland published its National Remote Work Strategy in January 2021, which in addition to mandating that home and remote work should be the norm for 20 percent of public sector employment and emphasising the right to disconnect, also committed to investing in teleworking infrastructure, such as remote working hubs and the provision of high-speed broadband.

The Slovakian government developed an amendment to Labour Code 31 to establish a new set of rights and obligations of the employee and the employer. This means that a teleworking arrangement requires mutual agreement and a regular pattern. Employers are also obliged to reimburse the employee for increased costs related to, for example, the use of their own equipment while working remotely.

Interestingly, the pandemic has not instigated regulatory changes in any Nordic countries. Prior to the pandemic, most of these countries had implemented teleworking policies based on self-regulation and trust between the employee and the employer, which have been effective throughout Covid-19 and therefore require no alterations.

Although teleworking regulations across Europe have many common features such as the employee’s right to work remotely in a safe and healthy way, and their right to disconnect at the end of the working day, businesses should consult teleworking regulations in their own country for more specific national guidance. For practical information on safe and healthy ways of devising and implementing teleworking strategies, please visit the teleworking priority area of the Healthy Workplaces Lighten the Load website. Don’t forget to follow the campaign on Facebook, Twitter and LinkedIn for more news, resources, and information.