Work From Home And Telework Under The Current Legal Regulation And Its Imperfections

Călin Haiduc, Associate at Iordăchescu & Associates

Given the effects of the pandemic caused by the COVID-19 virus, more and more employers have had to adopt measures to make employment more flexible, thus supporting social distancing. Amongst the measures recommended by the Ministry of Labour and Social Protection are the temporary changes to working arrangements, i.e. work from home or teleworking. Therefore, a vast part of the employers chose to agree with the employees that they should work from home.

Work from home

Article 108 of Law no. 53/2003 on the Labour Code (hereinafter referred to as ‘the Labour Code’) regulates the status of employees who work from home, showing that they are those employees who perform activities specific to their profession at home. Among the peculiarities of working from home is the fact that the employee establishes his/her own work schedule, according to paragraph 2 of the same article.

As a general rule, the employer must determine the work from home guidelines in agreement with the employee. The remote work agreement shall be concluded in writing and must include, in addition to the general clauses regulated by Article 17 of the Labour Code, the elements provided for in Article 109 of the same law, i.e.:

• To expressly state that the employee works from home;
• The schedule during which the employer is entitled to supervise the activity of the employee and the concrete way of carrying out such supervision;
• The obligation of the employer to ensure transport to and from the employee’s home, as the case may be, of the raw materials and materials he/she uses in the course of his/her activity, as well as of the finished products he/she makes.

It should be noted that in accordance with Article 48 of the Labour Code, by way of exception from the general rule, in case of force majeure, the employer may unilaterally decide that the employee is to carry out the activity specific to his/her profession or position from home. However, if such a measure was ordered for as long as the force majeure event existed, its effects shall cease with the disappearance of the force majeure event that required the measure to be taken.

Telework

Law no. 81/2018 on telework activity (hereinafter referred to as ‘the Law no. 81/2018’) allows the employer to agree with the employee, whenever possible, on the performance by the latter of activities and duties specific to his/her position, occupation or profession in a place other than the workplace as provided by the employer. Telework is defined by Article 2(a) of Law no. 81/2018 as ‘a form of work whereby the employee, regularly and voluntarily, fulfils the duties specific to his/her position, occupation or trade in a place other than the workplace as provided by the employer, at least one day per month by using information and communication technologies.’ 

We note that, unlike the regulation of work from home as provided by the Labour Code, the provision of Law no. 81/2018 additionally involves the use of information and communication technologies by the employee in carrying out specific activities. In similar fashion, in the case of telework, the employee may carry out his/her specific activity from any place other than the one provided by the employer, but not only from home.

Article 5(2) of Law no. 81/2018 regulates the particular clauses that the remote work agreement must comprise, in addition to those of Article 17 of the Labour Code. More precisely, it concerns:

• The express provision that the employee performs work offsite;
• The period and/or days during which the teleworker carries out his/her activity at the workplace provided by the employer;
• The place(s) of carrying out the telework, agreed by the parties;
• The schedule during which the employer is entitled to verify the activity of the teleworker and the concrete way of carrying out the supervision;
• The method of keeping a record of the working hours provided by the teleworker;
• The responsibilities of the parties agreed according to the place(s) of carrying out the telework, including the responsibilities in the field of safety and health at work as per the provisions of Articles 7 and 8;
• The obligation of the employer to ensure the transport to and from the place of telework of the materials that the teleworker uses in his/her activity, as the case may be;
• The obligation of the employer to inform the teleworker in respect of the legal regulations, the applicable collective labour agreement and/or the internal regulation with reference to personal data protection, as well as the obligation of the teleworker to comply with these provisions;
• The measures taken by the employer so that the teleworker is not isolated from the rest of the employees and which ensures him/her the possibility to meet with his/her colleagues regularly;
• The conditions under which the employer bears the expenses related to telework.

Advantages and disadvantages

Both in the case of work from home and telework, employers and employees have both numerous advantages and disadvantages. 

As far as employers are concerned, in both cases, they benefit from reduced costs regarding the arrangement and maintenance of the space intended for the activity of employees. Disadvantages, on the other hand, include the inability to supervise the employee while actually working, except under the terms mutually agreed and with prior notice to that effect.

As for employees, they benefit from reduced costs and the lost time by commuting from home to work. In point of fact, if the employee carries out telework, these costs may not disappear if the location of the activities is other than his/her home. At the same time, depending on the personality of each employee, they may be more productive or, on the contrary, more disorganised. 

Imperfections of current regulations

Opinions on telework were set out in the literature, which highlighted an issue that may arise if the employer wants to verify the employee’s activity, in accordance with the provisions of Article 5(2)(d) of Law no. 81/2018, and the latter carries out the specific activity at home. In the event that the employee does not express his/her consent for the employer to enter his/her home, the verification of the activity carried out by the employee cannot be actually performed. Some lawyers consider that in such a situation this may entail the disciplinary or material liability of the employee in relation to the employer.

We note that even in the situation where the employee works from home under Article 108 of the Labour Code, the previously mentioned issue may be raised. This is because Article 109(b) of the Labour Code regulates the possibility for the employer to verify the activity carried out by the employee, just as in the case of telework. Therefore, to the extent that the employer does not obtain the employee’s consent to enter his/her home, the former has no available means to compel the employee to allow such access. The solution of disciplinary or material sanctioning of the employee previously proposed may be applied in such a hypothesis as well.

However, we are of the opinion that in the situation where the employee carries out telework according to Law no. 81/2018, the specifics of such regime must be taken into account, as it results from the necessary use by the employee of information and communication technologies for carrying out specific activities. Therefore, the employer will most likely have the opportunity to verify the employee’s activity also through information and communication technologies. Such a way of exercising the prerogatives to verify the activity of the employee appears to be less intrusive while offering the employer the opportunity to achieve effective control.

Conclusion

More and more areas of activity, professions, positions or trades have evolved in such a way as to allow the employee to perform specific activities in a place other than the usual one provided by the employer. Current technology allows real-time communication between two or more persons free of charge by using an internet connection, regardless of the geographical location of the communicators. 

The last year showed us that Home Office, having as legal basis the aforementioned legal provisions, may be successfully implemented in many sectors of activity where in reality the physical presence of the employee at work is not necessary. To what extent these work regimes will be maintained even after the end of the pandemic remains to be seen. What is certain, however, is that there was enough time to analyse these legal concepts in the light of recent events and to be possibly improved in the future.