Work From Home in Costa Rica is a figure, which has been potentiated in recent years, thanks to the development of technology and as a measure to increase the productivity of companies, conserve the environment, promote road decongestion and more recently, as an important measure to mitigate the effects of the Covid-19 pandemic.
During years were several law projects at the parliament to regulate the teleworking, but the efforts were not enough, until September 2019, when the Law 9738 was issued and in December of the same year, the regulation of the law was issued too
The Telework Law and its regulations regulate the basic aspects of telework, for example the obligations to have an agreement and a company policy to regulate the telework, but they omitted some elements that could be important, such as, it is not clear which part (employer or employee), assumes the entire cost of the internet and other expenses. or in what proportion.
In addition, for the year 2018, the Ministry of Labor and Social Security issues the “Technical Guide for the Implementation of Teleworking in Companies”, which constitutes a parameter for private companies, but without having any binding or mandatory nature.
Teleworking becomes more important for 2020, since the Government, through “Executive Decree 42227-MP-S”, of March 16, 2020, decrees a National State of Emergency for the Pandemic of COVID 19 and orders, to the extent possible, that all companies in the public and private sector use telework; whereas to date an important part of the private sector is telecommuting and more than 40 public institutions are telecommuting.
Fernando Farrar – Associate / Andrea Melara – Paralegal
Most of the companies have had to reinvent themselves to be able to carry out their work from safe areas to avoid contagions derived from the health emergency that we are experiencing worldwide due to COVID-19. Resources that were not previously contemplated have been exploited; it is here that “Teleworking” becomes our ally to continue generating business opportunities.
We all have a notion of what teleworking is and what it involves to apply it, this being a remote working methodology that can be totally or partially, allowing the development of a specific professional activity that is conditioned by the continual use of specific electronic platforms, what characterizes it and makes it attractive to many is the fact that for the development of this methodology, the presence of the worker in a workplace is not necessary, but can continue to perform their functions from any space that allows them to have access to electronic work tools, something that becomes a practical way to avoid COVID-19 infections in the workplace.
In the case of El Salvador, it is until March 20, 2020, that Legislative Decree 600 is issued, which contains the “Telework Regulation Law”, this decree is approved; however, we are still waiting for it to be published in the Official Gazette. The purpose of this law is to promote, harmonize, regulate and implement telework as an instrument for job creation and modernization of public, private, autonomous and municipal institutions, using information and communication technologies. Its main objective is to make the most of information and communication technologies in the provision of services to the public and the general population.
It is expected that when this law comes into force, its scope will be the employment relationships derived from any employment relationship between workers, public and private employers. Their employment agreements are subject to the provisions of this law and any other source of rights and labor obligations.
“Teleworking” may be carried out in the following ways:
1. Telework at home: executed in the worker’s home.
2. Telework in work centers or telecentres: carried out in a center specifically designed for the development of work, which has shared resources.
3. Mobile or itinerant teleworking: when the job is not located in a particular place, the worker has permanent mobility
4. Alternate teleworking: when workers work certain days from the telecentre or their home and the rest of the workday, they do it in person.
The implementation of the “Teleworking” modality is strictly voluntary, both for the worker and for the employer and there must be an agreement between the parties, in which the terms and conditions are established; therefore, it must be a mutual agreement between the employer and the employee the application of this modality cannot be coercive.
Teleworking, working from home or the so-called “home office”, in this Pandemic, went from being an emerging figure that was implemented slowly depending on the culture of the company, to an indispensable need for the continuity of business in Guatemala.
In essence, we can call TELEWORK all those forms of work that do not require the physical presence of the person in offices and that can be done remotely (from home), through the use of information and communication technologies (ICT).
Since President Alejandro Giammattei decreed the State of Public Calamity and the curfew to prevent the spread of COVID-19 in the country, hundreds of people have lost their jobs and others have managed to adapt to working from home, with the inconveniences that this has involved and with the unforeseen implementation of technologies to be able to continue with their work.
Guatemala today doesn´t have its own regulation of the figure of “teleworking”. Proof of this is the recent initiative of law presented before the Congress of the Republic that proposes the promotion and implementation of the so-called telework or work carried out via internet from home. This initiative emphasizes that it will stimulate job creation and modernization, both in the public and private sectors. In summary, it is a proposal in which the worker has flexible schedule, reduction of displacement, less risk of accidents and insecurity, and for its part, the employer will benefit from a reduction in fixed and investment costs, in addition to which it can increase its productivity and decrease staff turnover.
Evidently, Guatemala needs to modernize with technologies, programs and public policies that promote telework, but at this time we can confirm that, considering the Executive’s exhortation to promote telework in companies, the worker and employer can reach mutual agreements that will allow working from home, either by implementing work policies accepted by workers or by appropriately modifying their contracts that establish the place or places where they must provide services.
We recommend in the case of the implementation of telework consider the following suggestions:
Establish policies and/or guidelines prior to its implementation which include as a minimum:
A. The ratification of conditions under which he carried out his work in the workplace.
B. The commitment to use the official communication media and the company’s information systems.
C. Respect the confidentiality of the matters to be dealt with, due zeal and care in handling the documents. It´s suggested to use only company devices.
D. Require continuous briefs and reports.
E. Commit to being available at the times established in your contract and duly agreed.
F. Appear at the office or attend meetings that are required or where an indispensable and urgent presence is warranted.
G. Have availability of access to internet services and signal coverage in the place where teleworking is carried out. In accordance with Guatemalan law, the employer is obliged to provide everything necessary to the worker so that he can carry out his functions in the exercise of his position within the structure of the company.
H. The indication specifies that, if the worker fails in a proven and repeated breach of his obligations, teleworking can be suspended, and the corresponding disciplinary measures can be initiated.
We must consider that telework has advantages and disadvantages for both the worker and the employer, but at this time of so much sudden change and continuity of confinement, without a doubt, it is the ideal figure to be implemented and in which its flexibility, the possibility of being more productive, reducing costs, respecting curfews and easy implementation with most collaborators. It will be a challenge for the workplace to implement this measure in such an aggressive way, but with certainty we can confirm that it´s the beginning of a change that is extremely necessary for labor modernity and new generations.
Home office is not regulated in Honduran legislation, however, due to the health crisis the country is experiencing, the Government of the Republic is promoting Home office, which is why in the Law of Economic Acceleration and Social Protection against effects of the Coronavirus, Article 8 of Labor Code authorizes the implementation of Home office, and must comply with the following:
a) There should be a written contract or an addendum to the existing contract, containing:
• What is indicated in article 37 of the Labor Code,
• Rules of ownership, use and care of equipment,
• How the interconnection costs will be paid,
• Ownership of the data or information transmitted
• Processes to guarantee the storage of this.
Employees will be subject to a number of hours or carry out the activity that they negotiate with their employer, respecting the maximum number of hours indicated in the labor legislation, they are also obliged to comply with the Internal Regulations of the company as well as other obligations and rights. contained in our Labor Code.
1. Legal aspects. The Labor Code provides some basic guidelines for the work from home which, although perhaps not adjusted to the current demands due to both technological and health reasons, is the sole frame of reference, and it could serve as a platform upon which companies may implement this type of work with a greater degree of legal certainty. Those guidelines include the right of the worker to choose the workplace on the account of one or more employers; the use of their own materials or the employer´s; the salary may be agreed upon at piecework or for fifteen-day periods or lesser; the employers must be registered with the Ministry of Labor and must keep a ledger for the operations with workers, delivering working papers to each of them in which the work and the supplied materials are recorded. Though in practice this work method is not usual, the pandemic has pushed employers to seek alternatives allowing the companies to continue functioning without putting employees at risk, and in this scenario the work from home could be very useful. It is important that in any event employers and employees agree on the terms and conditions that will govern this work scheme according to the particular needs of each company and the goals, purposes and responsibilities of the job position. Given that the work from home is being implemented during an ongoing labor relationship, the previous agreements between employers and employees, including labor contracts, could be significantly modified, specially in some aspects such as the workplace, the form in which the work will be carried out, employees´ reporting duties, the control, supervision and measurements of work efficiency and results, amongst others, being recommendable that these changes may be agreed upon in the form of amendments or addenda to the preexisting labor contracts, taking into account that certain fundamental aspects in the labor relationship, such as salary, vacations, Christmas bonus (known as “thirteenth month”) and those benefits granted by the company as employees´ acquired labor rights, could not be affected due to the change to the work from home alternative. Employers could also terminate the current labor relationship with the employee, paying the corresponding labor liquidation, and entering into new arrangements adjusted to the work from home.
2. Practical aspects. The work from home might not be a feasible option for some industries in which an important part of employees must work on-site, such as construction, transportation, hospitality, agricultural activities, etc., where the employers´ efforts are more focused on the increase of health protection measures at their workplaces. On the other hand, in those sectors where the employee can work from home, this alternative offers important benefits, including the protection of employees´ health in times of pandemic, by avoiding the commuting to the workplace and the use of transportation means; it also allows savings for employees (transportation, meals) and the reduction of costs for employers (facilities´ costs, equipment, etc.). The increased use of technology, as internet and the digital platforms offered, such as videocalls, workgroups, etc., enables a permanent communication at all levels in the company, so a well-structured work from home should not entail per se a distancing additional to the physical distancing recommended in times of pandemic, nor the reduction of the company´s productivity. Notwithstanding, the increase in the use of technology should be confronted with the economic reality of the country, which is not in its best moment. The internet access, maintenance of personal computers and other devices, energy consumption at home, technical training, etc., entail costs that should be considered before the work from home scheme is implemented, taking into account the particular conditions and situation of each employee, and including in the contracts the arrangements made on these respects (costs) by the employer and employee.
3. Cultural transition. The implementation of telework in companies certainly involves a cultural transition in all its human component. In a culture where the work on-site is strongly established, working from home represents an important turn in the country´s labor culture. The control measures and work efficiency assessment should be adjusted to a new reality where managers and personnel directors will not be in the same facilities or places with their personnel, so new supervision mechanisms should be conceived and implemented taking maximum advantage of the technological resources. Working from home requires not only adequate technical capabilities and knowledge, but, above all, a change of paradigm on the organization and on the way the work is performed, in which the personnel will have a higher level of independency when carrying out their duties, while adapting to the new work patterns and schemes applied in the company.