The COVID-19 pandemic has changed the concept of work in Spain, introducing remote working as the main novelty. Over the last months, companies have used this form of work linked to COVID: governed by whatever was agreed between the parties, as it provided great freedom of form.
With the entry into force of the RDL 28/2020, dated 22 September, on remote work, the Spanish government attempted to limit this freedom of form, setting minimum requirements to be respected (expenses to be covered, means to be provided by the company, etc.).
Notwithstanding the foregoing, the regulation established the following in its third transitional provision: the application of ordinary labour regulations for remote working, which were established based on Article 5 of RDL 8/2020, dated 17 March, or because of the health containment measures derived from COVID-19, for as long as those measures subsisted. Remote working linked to the COVID-19 health protection measures was not expected to meet the minimum requirements of RDL 28/2020 and would continue to be governed by the parties’ agreements.
Because of this exception, companies have continued to use remote working, subject to ordinary regulations (and the parties’ agreements), and avoided the application of the minimum requirements set out in the new law.
With the end of the state of emergency on 9 May, can companies continue to use remote working without being bound by the provisions of RDL 28/2020?
What happens to remote working after the state of emergency?
To resolve this question, it is essential to determine whether the company introduced remote working because of COVID based on Article 5 in RDL 8/2020, which declared the state of emergency, or because of the health measures derived from COVID-19.
In this sense, Article 5 of RDL 8/2020 provides for the preferential nature of remote working as an extraordinary measure to curb COVID-19, which inevitably links it to the social and health situation. It, therefore, seems difficult to understand that, as long as the social and health situation persists, this recommendation cannot be maintained. Indeed, the third transitional provision of RDL 28/2020, stipulates that said law does not apply to remote working agreed following the health containment measures derived from COVID-19.
For this reason, we must distinguish between two types of remote working:
1. Remote working linked to Article 5 of RDL 8/2020: under Article 5 and the tenth final provision of RDL 8/2020, it will remain in force until 9 August 2021.
2. Remote working because of the COVID-19 health containment measures: it will stay in force for as long as these measures exist.
Bearing in mind that at some point this exception will end, we recommend companies to prepare the labour regulation that will allow the transition to remote working regulated in RDL 28/2020.
Alejandra Sanz
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