The Judiciary emphasizes to citizens their rights and duties as teleworkers.
The pandemic caused by covid-19 brought with it an increase in teleworking positions. In response to this, the Judiciary stressed to citizens their rights and duties as teleworkers to avoid future conflicts.
Indeed, the entity recalled the scope of Law No. 31572, which indicates that the institution or company must provide the equipment, the Internet access service or economic compensation for the provision of these, in addition to the consumption of electrical energy. .
In this sense, the employer must take care of the assets granted, use them for teleworking and prevent the assets from being used by people outside the employment relationship.
The PJ indicated that it is important to fulfill the duties, such as delivering and reporting the assigned tasks during the working day and being available for coordination within the schedule.
Article 1. Object of the Law
The purpose of this law is to regulate teleworking in public administration entities and in private institutions and companies within the framework of decent work and the reconciliation between personal, family and work life, and to promote public policies to guarantee its development.
Article 2. Scope of application
2.1 This law applies to the entities established in article I of the preliminary title of the Single Ordered Text of Law 27444, Law of General Administrative Procedure, approved by Supreme Decree 004-2019-JUS, and to institutions and private companies subject to to any type of labor regime.
2.2 This law applies to all civil servants of public administration entities and workers of private institutions and companies, subject to any type of labor regime.
Article 3. Teleworking
3.1 Teleworking is a special modality for the provision of work, on a regular or habitual basis. It is characterized by the subordinate performance of those without the physical presence of the worker or civil servant in the workplace, with which they maintain a labor relationship. It is done through the use of digital platforms and technologies.
3.2 Teleworking is also characterized by:
Be voluntary and reversible.
Be temporary or permanent.
be in whole or in part.
Make the time distribution of the working day more flexible.
Be carried out within the national territory or outside it.
The place where it is carried out is established in accordance with article 11, provided that the agreed place has the necessary digital and communication conditions.
Article 4. Teleworker
4.1 The worker or civil servant who is under the modality of provision of telework tasks is called a teleworker.
4.2 The teleworker and the employer establish, by mutual agreement, the characteristics detailed in article 3, numeral 3.2, of the telework to be implemented.
Article 5. Coordination for teleworking
The employer establishes the means and the necessary tools for the provisions, coordination, control and supervision to carry out telework, respecting the privacy of the teleworker.
RIGHTS AND OBLIGATIONS
Article 6. Rights of the teleworker
6.1 The teleworker has the same rights as those established for workers or civil servants who work in person, according to the type of labor regime to which each teleworker belongs.
6.2 To receive the following working conditions: the equipment, the Internet access service or the economic compensation for the provision of these, in addition to the compensation for the consumption of electrical energy, in accordance with the provisions set forth in Chapter IV.
6.3 To digital disconnection.
6.4 To the intimacy, privacy and inviolability of the teleworker’s private communications and documents, considering the nature of teleworking.
6.5 To be informed about the safety and health protection measures, conditions and recommendations in teleworking that must be observed.
6.6 The regulation regulates the rights of the teleworker.
Article 7. Obligations of the teleworker
7.1 The teleworker has the same obligations as those established for workers or civil servants who work in person, according to the type of labor regime to which each teleworker belongs, except with regard to attendance at the work center.
7.2 Carry out teleworking personally, and it is not possible for it to be carried out by a third party.
7.3 Deliver and report the work commissioned by the employer within their workday.
7.4 Comply with all the provisions issued by the employer for the development of teleworking.
7.5 Comply with the measures, conditions and recommendations for health and safety in teleworking and current regulations on digital security and trust, protection and confidentiality of data, as well as keeping confidentiality of the information provided by the employer for the provision of work.
7.6 Be available during the working hours of teleworking for the coordination that may be necessary.
7.7 Take care of the assets granted by the employer, use them for teleworking and prevent the assets from being used by people outside the employment relationship.
7.8 Participate in training programs provided by the employer.
7.9 The regulation regulates the obligations assumed by the teleworker.
Article 8. Obligations of the employer
8.1 The employer has the same obligations as those established for workers or civil servants who work in person, according to the type of labor regime to which each teleworker belongs.
8.2 Communicate to the worker or civil servant or teleworker the will, duly motivated and with the corresponding anticipation, to agree on a change in the mode of provision of work, to teleworking or face-to-face, through any physical or digital support that allows to record it .
8.3 Objectively evaluate the request for a change in the way of providing work submitted by the worker or civil servant or teleworker to opt for teleworking or return to face-to-face work.
8.4 To deliver the following working conditions: equipment and Internet access service or assign economic compensation for the provision of these to the teleworker, in addition to compensation for electricity consumption, in accordance with the provisions set forth in Chapter IV .
8.5 To respect the digital disconnection of the teleworker.
8.6 Notify the teleworker about the labor communication mechanisms and the safety and health measures, conditions and recommendations in teleworking that must be observed during their workday.
8.7 Train the teleworker in the use of computer applications, in information security and in safety and health in teleworking.
8.8 The regulation regulates the obligations assumed by the employer.
IMPLEMENTATION OF TELEWORK
Article 9. Application of teleworking
9.1 The parties agree in the work contract or in a document attached to it or in another valid means, at the beginning or during the term of the employment relationship, the provision of work under the teleworking modality, subject to the regulations of this law . In no case does the change in the modality of the provision of work affect the nature of the labor relationship, the category, the remuneration or the benefits obtained by collective agreement or those adopted in conciliation or mediation, and other previously established labor conditions.
9.2 In the public administration, the implementation of teleworking is prioritized in those positions and teleworking activities identified in article 18.
9.3 The worker or civil servant or teleworker can request the employer to change the modality of the provision of their work, in person to telework, or vice versa, which is evaluated by the employer, being able to deny said request in use of its directing power , and must support the reasons for said refusal. This request is answered within 10 business days. After the period without response to the request of the worker or civil servant, it is understood as approved.
9.4 The employer, exceptionally, using its directing power and for duly substantiated reasons, can vary the modality of the provision of work from face-to-face to teleworking, or vice versa, guaranteeing that the teleworker or worker or civil servant will have adequate training. , the working conditions and the facilities necessary for the provision of work.
9.5 In the event that the employer decides to change the modality of the provision of work from face-to-face to teleworking, or vice versa, this must be done prior notice in writing or electronically to the worker or civil servant or teleworker, with a minimum of 10 days notice. business days.
Article 10. Hiring of the teleworker
For the contracting of the teleworker, all contracting modalities are used. In all cases, the employment contract must appear as documented information; the document may be stored in a digital format that ensures its integrity and authenticity. For changes in the modality of provision of work, from conventional to teleworking and vice versa, an agreement between the parties is required, without prejudice to the cases of unilateral variation provided for in article 9.
Article 11. Place where teleworking takes place
11.1 The teleworker is free to decide the place or places where they will usually carry out the telework and these must be informed to the employer before the start of the provision of work.
11.2 In the event of a change in the usual place of teleworking, the teleworker must notify the employer 5 business days in advance, except for duly justified cause. In these cases, the employer unilaterally applies the alternative self-assessment mechanism, provided in article 23 of this law, for the identification and evaluation of risks of the new usual place of teleworking, in addition it provides the necessary facilities for the provision of work in the new usual place of teleworking.
Article 12. Minimum content of the contract or agreement to change the modality of provision of work
For the hiring of teleworkers or for the change in the mode of provision of work from face-to-face to teleworking, the employer and the worker or civil servant define, as a minimum, the following aspects:
a) Specify whether the teleworking modality will be applied totally or partially; in the latter case, the execution time of the service must be specified in person.
b) The period for which the teleworking modality is applied, which may be temporary or permanent.
c) The minimum notice period for the teleworker to personally attend his work center, in cases where his physical presence is required or for the assignment of service commissions. The term will not be enforceable when due to unforeseeable causes or force majeure it is not possible to comply with such anticipation.
d) The way in which the teleworking working day is distributed. In cases where the daily workday is not continuous or when workdays are shorter than 8 hours, the workdays can only be distributed up to a maximum of 6 days a week and the daily digital disconnection time must be established, considering a minimum of 12 hours. continuous in a 24 hour period.
e) Establish the address of the teleworker only as a reference to the place where he will provide the work, unless the parties agree on a specific place or places for said purpose.
f) The communication, supervision and control mechanisms that the employer will use regarding the tasks that the teleworker will provide.
g) Digital platforms and technologies for the provision of work, such as the provision of equipment and Internet access service, as appropriate, and may be updated based on the technological development of the employer.
h) The financial compensation mechanisms for the use of the teleworker’s equipment and the costs assumed by the Internet access and electricity services, as appropriate.
i) Affidavit prohibiting the use of third parties to carry out the agreed telework.
j) Others established by the regulations.
Article 13. Occasional attendance of the teleworker at the workplace facilities
In the event that the teleworker needs to attend his workplace to carry out activities, such as making inquiries related to his employment relationship, managing specific systems or programs that allow him to carry out his work, participating in welfare activities that organized by the employer or others, you must previously coordinate with your immediate boss or with the staff of the human resources office, or the one that acts as such, in order to guarantee easy access to the facilities. This faculty of the teleworker in no way means affecting the established teleworking modality.
Article 14. Registration of teleworkers
14.1 The employer informs the Ministry of Labor and Employment Promotion about the number of teleworkers, whether total or partial, that he employs through a declaration through the electronic form.
14.2 The Ministry of Labor and Employment Promotion periodically sends the information of teleworkers, obtained through the electronic payroll, from public administration entities to the National Civil Service Authority (Servir).
14.3 The Ministry of Labor and Employment Promotion has the power to verify the information submitted by the employer of private institutions and companies and to supervise the condition and situation of teleworkers.
Article 15. Sexual harassment at telework
The configuration and manifestations of sexual harassment in the case of teleworking are subject to the provisions of Title I, Chapter II, Concept, Elements and Manifestations of Sexual Harassment, of Law 27942, Law for the Prevention and Punishment of Sexual Harassment, and its regulations, as appropriate.
Article 16. Teleworking in favor of the vulnerable population and others
16.1 Teleworking is encouraged in favor of the vulnerable population, preferably establishing its implementation in the case of disabled, pregnant and lactating staff, as well as staff responsible for caring for children, the elderly, people with disabilities, of people belonging to risk groups due to clinical factors or pre-existing illnesses or with direct relatives who are in a serious or terminal illness or suffer a serious accident, having previously evaluated the nature of the functions and the profile of the position performed the worker.
16.2 The regulation establishes the procedure for the evaluation and application of teleworking in favor of vulnerable populations.
Article 17. Teleworking in special situations
17.1 For the purposes of this law, special situations are considered:
a) Circumstances of fortuitous event or force majeure that require that, in order to guarantee the continuity of services, certain activities can be carried out under the teleworking modality.
b) When the declaration of the state of emergency requires that the services provided be carried out through teleworking.
17.2 Faced with the special situations indicated in numeral 16.1, employers have the power to implement the following measures, as appropriate:
a) Unilaterally order the change of labor provision from face-to-face to teleworking, and must ensure the provision and access to basic and essential services and goods for the development of functions.
b) Communicate to the worker or civil servant the decision to change the place of provision of work in order to implement teleworking, through any physical or digital support that allows to record it.
c) Unilaterally vary the functions originally assigned to the worker or civil servant, in order to enable them to telework.
d) In addition to the conditions mentioned in this article, the provisions of this law apply to teleworking in special situations.
Concluded the assumption that gave rise to the application of telework in special situations, the teleworker returns to the situation prior to the application of said modality.
Article 18. Teleworking in the public administration
18.1 The head of the public entity is responsible for promoting, directing and evaluating the deployment of teleworking in its institutional environment.
18.2 The person in charge of human resources, or the one acting in their place, in coordination with the heads of the organs and organic units of the public entity, identify:
a) The positions, activities and functions that can be carried out in the teleworking modality, without this generating an affectation in the provision of public services, as well as that an adequate supervision of the work can be carried out.
b) Civil servants who will carry out teleworking, for this they take into consideration that if the entity does not have available computer or ergonomic equipment, the civil servant must have these to carry out teleworking.
18.3 The digital government committee of the public entity promotes the digital transformation process for the application of teleworking.
DELIVERY, USE AND CARE OF EQUIPMENT, WORK TOOLS AND COMPENSATION OF EXPENSES
Article 19. Rules on the provision, use and care of technological equipment
19.1 In private institutions and companies, the equipment and the Internet access service are provided by the employer. When it is agreed that the teleworker provides their own equipment and the Internet access service, these are compensated by the employer, unless otherwise agreed. In either case, electricity consumption is also compensated, unless otherwise agreed.
19.2 The provisions of numeral 19.1 are not applicable to employers of micro and small companies registered in the National Registry of Micro and Small Companies (Remype), unless otherwise expressly agreed.
19.3 In public administration entities, the provision of equipment to the teleworker is carried out using existing equipment in the entity. If there are limitations, it is the teleworker’s power to provide their own equipment; in this case, the employer does not compensate the cost of the equipment or the expenses generated by its use.
19.4 The provision of equipment for teleworkers with disabilities considers the provisions of article 50, “Reasonable accommodations for people with disabilities”, of Law 29973, General Law on Persons with Disabilities.
19.5 The employer guarantees all the necessary facilities for the access and digital accessibility of the teleworker to the systems, platforms, office automation tools, security software or other applications, necessary for the development and fulfillment of their functions, also providing them with the support remote technology. The teleworker is responsible for the correct use of the facilities provided by the employer.
19.6 In the public administration, according to the characteristics of the telework that is required to be carried out, the facilities to provide or assume the costs of the Internet access service for the teleworker depends on the budgetary availability of the entity.
19.7 The regulation establishes the way in which the compensations established in this article are determined and made.
Article 20. Compensation of expenses in private institutions and companies
20.1 In private institutions and companies, the compensation of expenses for the use of teleworker equipment is assumed by the employer in any of the two modalities of telework, total or partial, and it is not conditioned if telework is carried out or not in the address of the teleworker, unless otherwise agreed.
20.2 The compensation of expenses for the cost of the Internet access service and the consumption of electrical energy is only assumed by the employer when the provision of teleworking tasks is carried out at the home of the teleworker.
20.3 The compensations indicated in numerals 20.1 and 20.2 are assumed by the employer without prejudice to the greater benefits that could be agreed by individual agreement or collective agreement.
20.4 The amounts assumed by the employer for the compensation of expenses qualify as a work condition and are recorded in this way in the electronic spreadsheet.
20.5 The regulation establishes the way in which the compensations established in this article are determined and made.
WORKING TIME AND DIGITAL DISCONNECTION
Article 21. Time of the working day and registration mechanism
21.1 The maximum time of the teleworker’s working day is the same applicable to the worker who works in person.
21.2 The exclusions that apply to the time of the maximum working day or the provision of work, provided for in the regulations that regulate the working day, also apply to teleworking.
21.3 The parties may agree on the free distribution of the working day at the times that best suit the needs of the teleworker, always respecting the maximum limits of the daily and weekly working hours, and subject to the rules on the duration of the working day.
21.4 In institutions and private companies, the overtime that the teleworker works, after the time of the working day or works during the weekends or holidays, must be recognized by the employer in accordance with the law. The performance of overtime is always at the request and consent of the employer.
21.5 In the public administration, the overtime that the teleworker works after the time of the working day or that works at the request of the employer during weekends or holidays are compensated through the granting of equivalent physical rest. Overtime pay is not possible. The performance of overtime is always at the request and consent of the employer.
21.6 When the private employer needs to implement a mechanism for recording compliance with the teleworking day, he must implement it at his own expense. In the case of the public administration, in accordance with the eighth complementary provision of this law, they use digital platforms for the purposes of managing compliance with working hours, record of deliverables and others provided by the public entity and the National Civil Service Authority. , as appropriate.
Article 22. Digital disconnection of the teleworker’s working day
22.1 The teleworker has the right to disconnect digitally during hours that do not correspond to their working day. Said right guarantees the enjoyment of free time for a break, includes the daily hours of rest outside working hours, the mandatory weekly rest, the annual vacation period, paternity and maternity leave, and breastfeeding hours, as well as permits and licenses for accidents or illness, and others. Digital disconnection guarantees the enjoyment of free time, the balance between work, private and family life.
22.2 The employer respects the right to digital disconnection of the teleworker’s working day, guaranteeing that during this period they are not obliged to respond to their communications, orders or other requirements that were issued, except for reasons of force majeure or exceptional circumstances.
22.3 For management teleworkers, for those who are not subject to immediate supervision and for those who provide intermittent work or have distributed the time of their working day, a differentiated period of at least twelve continuous hours is established in a period of twenty-four hours, in addition to rest days, licenses and periods of suspension of the employment relationship, so that they can exercise their right to disconnect.
22.4 The competent authorities monitor the employer’s compliance with the exercise of the right to digital disconnection of the teleworker’s working day.
DIGITAL SECURITY IN TELEWORK
Article 24. Digital security in teleworking
24.1 The specific conditions of security and digital trust for the development of teleworking are subject to the provisions of Legislative Decree 1412, Legislative Decree that approves the Digital Government Law, and in Emergency Decree 007-2020, Urgent Decree that approves the Digital Trust Framework Law and provides measures for its strengthening, and their respective regulations.
24.2 In the public administration, the Presidency of the Council of Ministers, through the Secretariat of Government and Digital Transformation, issues guidelines for security and digital trust in teleworking, which contain, as a minimum, provisions on the use of communication networks. secure communication and information, and measures and controls to prevent identity theft and social engineering.
SUPERVISION, INSPECTION OF TELEWORK AND SANCTIONS
Article 25. Supervision of teleworking
In public administration, the National Civil Service Authority (Servir), within the framework of its powers, carries out guidance and supervision actions in public entities, to verify compliance with the provisions of this law and its regulations, and issues the complementary provisions for its development, as well as others that contribute to the proper implementation of the teleworking modality.
Article 26. Inspection of telework
In private institutions and companies, the National Superintendence of Labor Inspection (Sunafil), within the framework of its powers, guides and supervises compliance with the norms contained in this law and its regulations in workplaces, premises and, in In general, the places where the teleworking labor provision is carried out.
Article 27. Offenses
Violations of the provisions of this law are classified as minor, serious and very serious.
27.1 The following breaches are minor infractions:
a) Not informing the teleworker of the health and safety conditions that he must comply with to carry out teleworking, provided for in article 23.
b) Prevent the attendance of the teleworker at the workplace facilities to carry out the activities provided for in article 13.
27.2 The following breaches are serious infractions:
a) Apply the change of modality of a conventional worker to that of teleworking or vice versa without his consent, except for those unilateral changes made in use of his directing power provided for in article 9.
b) Failure to comply with the obligations related to the provision of equipment, the Internet access service and the training of the worker or teleworker.
c) Failure to comply with the timely payment of compensation for the working conditions assumed by the teleworker.
27.3 The following non-compliance is a very serious infraction:
a) Not respecting the right of the teleworker to disconnect digitally during hours that do not correspond to their working day.
Article 28. Disciplinary regime and disciplinary procedure
28.1 In private institutions and companies, the misdemeanors, the determination of the sanction, the sanctions, their graduation and the respective procedures, which result from applying the provisions of this law are governed by the provisions of Title IV, “Regime of infractions and sanctions regarding labor relations, safety and health at work and social security”, of Law 28806, General Labor Inspection Law, and its regulations.
28.2 In the public administration, disciplinary offenses, sanctions, their graduation and the respective procedures, resulting from applying the provisions of this law, are governed by the disciplinary administrative procedure established in Law 30057, Civil Service Law and its regulations. In the case of special career servers, the disciplinary administrative procedure regulated by their respective special career regulations is applicable.
FINAL SUPPLEMENTARY PROVISIONS
Public administration entities, institutions and private companies that, at the entry into force of this law, have teleworkers, as well as servers and workers under the remote work modality, provided by Emergency Decree 026- 2020 and Supreme Decree 010-2020-TR, as appropriate, adapt to the provisions established therein within a maximum period of 60 calendar days from the day after the regulation is published.
SECOND. Report on the progress of the implementation of the law
The Ministry of Labor and Employment Promotion and the National Civil Service Authority issue annually, according to their powers, an evaluation report on the implementation and application of the provisions of this law, including recommendations, without prejudice to carrying out the necessary periodic evaluations. , considering background and technical opinions. The report of each one of the aforementioned entities is sent to the Labor and Social Security Commission of the Congress of the Republic; Likewise, it is published in the respective institutional web portals.
THIRD. Financing of the implementation of teleworking in the public administration
The implementation of teleworking in the public administration entities of the different levels of government, in accordance with the provisions of this law, is financed from their respective institutional budgets, without demanding additional resources from the public treasury.
The Executive Branch issues the regulations of the Teleworking Law at the proposal of the Ministry of Labor and Employment Promotion, in coordination with the National Civil Service Authority and with the Presidency of the Council of Ministers, through the Secretariat of Government and Digital Transformation , within a maximum period of 90 calendar days from its entry into force.
Likewise, the Executive Branch adapts the regulations of Law 28806, General Labor Inspection Law, at the proposal of the Ministry of Labor and Employment Promotion, to the provisions of this law within a maximum period of 90 calendar days from its entry into force.
FIFTH. Implementation of teleworking in public administration entities
The National Civil Service Authority (Servir) promotes the implementation of teleworking in public entities, according to the level of government, territorial approach and others that it establishes as necessary. Notwithstanding the foregoing, public entities prioritize the implementation of teleworking in accordance with the guidelines approved by Servir and may require their support for the definition of teleworking positions and strategies for monitoring and supervising teleworking.
SIXTH. Digital guidance channel on teleworking for the citizen
The Presidency of the Council of Ministers, through the Secretariat of Government and Digital Transformation, in coordination with the Ministry of Labor and Employment Promotion and the National Civil Service Authority, as appropriate, implement and maintain a digital guidance channel on teleworking on the GOB.PE platform.
SEVENTH. Strengthening digital skills for teleworking
The Presidency of the Council of Ministers, through the Secretariat of Government and Digital Transformation, in coordination with the Ministry of Labor and Employment Promotion and the National Civil Service Authority, as appropriate, articulates actions with organizations from the private sector, the public, academia and civil society to strengthen digital skills for teleworking as part of the exercise of digital citizenship.
EIGHTH. Implementation of digital platforms
The Secretariat of Government and Digital Transformation of the Presidency of the Council of Ministers, in coordination with the National Civil Service Authority, promotes the creation of digital platforms necessary for the implementation of the teleworking modality in public administration.
The purpose of these digital platforms is to manage the tasks of compliance with the working day, record of deliverables, notices and communications with the teleworker, among others. Also, user management, training, supervision, and approval of procedures for their use, security, confidentiality, integrity, and availability of information.
NINTH. training modalities
In the case of training or other similar modalities, the provisions of this Teleworking Law are applied, as long as they do not contravene their training nature.
REPEALING SUPPLEMENTARY PROVISION
Law 30036, Law Regulating Teleworking, is repealed.
Source: The Peruvian