Portugal: New teleworking regime includes significant new requirements

Employer Action Code: Act

Parliament approved a number of changes to the Labor Code that redefine Portugal’s teleworking legal framework, in particular employers’ requirements and responsibilities under work-from-home arrangements. The amendments are aimed at protecting and extending remote workers’ rights and supporting work/life balance in light of the post pandemic employment dynamics. The legislation (Law N° 83/2021) was published in the Official Gazette (Diário da República) on December 6, 2021, and takes effect on January 1, 2022.

Key details

Notable changes and new rules on teleworking include:

• Teleworking arrangements must be agreed in writing, either as part of the employment contract or as a separate agreement, under both the old and new rules; however, the number of mandatory provisions in agreements is increased to regulate telework more closely. Among other things, the new rules also explicitly recognize mixed or hybrid work arrangements to be considered as telework.
• The duration of agreements may be indefinite or a fixed term of up to six months, automatically renewed for the same period. Under the old rules, agreements had to be for a fixed duration of up to three years. The minimum notice period by either party to terminate a fixed agreement is 15 days prior to the end of the term (30 days under the old rules) and 60 days for indefinite agreements.
• Employees whose work is compatible with teleworking and where resources are present to support such work can request to telework under both the old and new rules. The primary differences under the new regime is that denials of requests must be in writing, explaining the reasoning, and the unilateral right to telework for employees who are victims of domestic violence or with children under age three is expanded to include employees with children between the ages of three and eight, provided the company has 10 or more employees and the claimant meets further family status conditions.
• The employer must directly pay for or reimburse costs associated with the provision and use of teleworking tools (rather than those costs being negotiable).
• Online meetings and work projects with precise deadlines, as well as onsite meetings, training or any event that requires the employee’s physical presence, must occur within normal working hours (this was not addressed under the old rules).
• Employer contact with teleworking employees should not take place outside of normal working time, i.e., during the employee’s normal rest time, excluding exigent business needs of a force majeure nature.

Employer implications

Employers are encouraged to review their work-from-home policies and arrangements with their employees in order to remain compliant with the new rules. Although these measures come as a result of the current employment trends (accelerated by the pandemic), the new teleworking regime may affect employers’ organization of work in a variety of ways.