What is the Teleworking Law that companies must abide by from January 1, 2023

From January 1, 2023, companies must abide by the Teleworking Law, which is why the Ministry of Labor and Employment Promotion (MTPE) ordered the pre-publication of the draft supreme decree that approves the Regulation of Law No. 31572 , Telework Law, and its explanatory statement, to receive comments from those interested in the subject.

Ministerial Resolution No. 347-2022-TR specifies that the proposal is in the digital headquarters of the portfolio (www.gob.pe/mtpe) and the suggestions, comments or recommendations of employers and workers, or their organizations, of public entities or private and citizens will be sent to the email jnaupas@trabajo.gob.pe.

According to the proposal, the purpose of the regulation is that the regulation of teleworking is subject to the context of decent work. To this end, it establishes a set of minimum rights aimed at guaranteeing the well-being, integrity, dignity, and reconciliation between the personal, family and work life of all workers.

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The draft regulation emphasizes that, in accordance with article 3 of the law, teleworking may be total or partial. In the first case, it will be the one in which the provision of non-face-to-face work is agreed, except for eventual face-to-face activities or coordination at the time that the teleworker deems necessary or that the employer requires, it points out.

In the partial, the provision of face-to-face and non-face-to-face activities will be determined. The distribution of the working day will be specified in the employment contract or agreement on the change in the modality of provision of work, details the initiative.

The proposal also recalls that teleworking will be permanent or temporary, depending on the term agreed by the parties. In the absence of this limit, it will be understood that it will be of a permanent nature, although this condition will not prevent the modality from being modified as established by the regulations.

The application of the face-to-face modality to teleworking will be the product of an agreement between the parties. The rejection of the teleworking modality by the employee will not be a cause for termination of the employment relationship or modification of working conditions, underlines the initiative.

Teleworking, he details, may be part of the initial description of the job position or be agreed upon later. In any case, the teleworker will be allowed to request the change from face-to-face to teleworking, or vice versa. In no case will the change from face-to-face to teleworking affect the dignity of the staff, he emphasizes.

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Teleworkers may carry out their work within Peruvian territory as well as outside of it. In the case of provision of services abroad, the parties will agree on the specific conditions of this modality, guaranteeing the rights of teleworkers.

The application of teleworking, in the case of foreigners, will not exempt them from compliance with the corresponding immigration and labor regulations, the MTPE project specifies.

In addition, the initiative details that for the hiring of teleworkers or for the change in the modality of providing work from face-to-face to teleworking, the employer and the worker will define, as a minimum, the content indicated in article 12 of the law.

At the same time, they will include the obligations of the employer in the context of teleworking; the rights and obligations of the teleworker in the provision of the service; and protection measures against sexual harassment in teleworking. Likewise, safety and health measures in teleworking; and information security provisions.

When commenting on the proposal, the Echecopar studio, associated with Baker & McKenzie International emphasizes that the project specifies the obligation to respect the right to intimacy, privacy and inviolability of teleworkers' communications. Unless there is prior notice, the employer will not be able to access the documents and communications of the personnel.

In addition, the prior and express consent of the teleworker will be required to agree or record their image or voice, unless this is required by the nature of the functions. Nor will it be possible to make visits to the teleworking place without the prior authorization of the employee, it indicates.

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The firm also highlights that the equipment provided by the employer may only be used for work purposes. Technical or connectivity failures that impair the provision of services will not be considered attributable to the teleworker and cannot be attributed as a disciplinary offence.

Law No. 31572, the Teleworking Law, regulates teleworking as a special modality for the provision of work, of a regular or habitual condition, which is characterized by the subordinate performance of those without the physical presence of workers in the workplace, with which he maintains a labor relationship; and that is done through the use of digital platforms and technologies.

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In addition, the initiative details that for the hiring of teleworkers or for the change in the modality of providing work from face-to-face to teleworking, the employer and the worker will define, as a minimum, the content indicated in article 12 of the law.