Due to the various measures adopted by governments and employers to control the situation caused by the COVID-19 pandemic, the need to remodel work environments has accelerated. Since 2020, the examination of extended policies for the regulation of telework, work from home or remote work has become very important in many companies, in order to provide flexibility for the benefit of both individuals and organizations.
Therefore, it is necessary to know the new regulations that have been derived, the situation of the legislation on this subject in the different jurisdictions of the Latin American regions, where your organization may be facing these new and almost definitive remote work environments.
Below we examine the current perspective of the different adoptions taken in some Latin American countries for the regulation of teleworking in the region and, how with this your organization can enter the context to adapt its work policies to it.
General regulatory framework for Teleworking in Latin America
The boom in the regulation of teleworking is recent in Latin America, although the phenomenon itself is not new.
Some countries had already regulated the modality years ago, others had to enact emergency regulations due to the coronavirus and there are nations that, due to a lack of legal mechanisms, limited themselves to promoting agreements between the parties in the face of existing legal gaps.
Although there have been advances in the regulation of teleworking in Latin America, few countries have specific rules to guarantee the conditions of remote workers. Colombia is the most advanced country in the regulation of teleworking, with clear rules and monitoring and generation of information on the acceptance and use in the country.
Certain nations have specific regulations that allow teleworkers and on-site workers to enjoy the same rights in terms of salary, benefits and working hours, however, it is not an approved situation throughout the region; archaic long-standing labor laws in many Latin American countries are one of the main barriers that have prevented addressing it.
The most advanced country in regulations: Colombia
This country already has a long journey in the implementation of Teleworking by organizations and, in turn, its relevant regulations.
Teleworking, regulated by the Law 1221 of 2008, allows the worker to provide their services from home after meeting certain requirements, where they establish standards to promote and regulate the same. This regulation defines both the concept of teleworking and its different forms (autonomous, mobile and supplementary).
In general terms, the Colombian state promotes its implementation and grants guarantees and protection to teleworkers and where employers must guarantee the conditions so that the teleworker can perform their duties properly.
Additionally, with the recently created figure of “work at home” by the Ministry of Labor through the Notice 021 of 2020, employment protection measures are established on the occasion of the containment phase in the face of the COVID-19 pandemic.
With “work at home” the possibility is contemplated for the person to work from home, with all the legal benefits and tools so that they can carry out their tasks as if they were in the office, considering it as an exceptional form of work. of temporary duration under special circumstances.
One of the first to promote Teleworking: Peru
Peru was one of the first countries in Latin America that promoted teleworking as a presidential policy, this with the aim of abiding by total isolation measures in the face of the COVID-19 pandemic.
Through the emergency Decree No. 026-2020 march 2020, the possibility was provided for employers to apply remote work, understanding it as: “the provision of services subordinated to the physical presence of the worker at his home or place of home isolation, using any means or mechanism that enables carry out work outside the workplace, whenever the nature of the work allows it.
In turn, by May 2021, the congress of the republic has approved the new teleworking law for the public and private sector, entrusted to the Bill 5408/2020-CR. In this, the “Teleworking Law” is proposed, now addressing the figure with sufficient flexibility to adapt to the current circumstances that arose in the face of the pandemic.
This rule provides that teleworking can be carried out in various ways, such as: temporary or permanent work; totally or partially, within the national territory or outside it; likewise, in the place where the parties agree, provided that the teleworker has the necessary technological, computer and communication tools.
What else can we see in the rest of the regions
In Argentina, although they do not have a legal instrument specifically drafted for teleworking, they do have a set of laws that encompass its activity and promotion, where they allow the same rights to exist between remote and on-site workers. Among them, the law of Work contract the rectification of Convention No. 177 of the International Labor Organization (ILO) about home work.
Bolivia, Chile and Guatemala do not have detailed regulations for the use of teleworking, where this modality operates under general rules in these countries and where, as a result of the COVID-19 contingency, discussions are being accelerated for the application of regulatory rules for it.
While Uruguay is working on the design of a special bill on the matter in conjunction with the National Directorate of the National Emergency Service (Sinae), where they are establishing guidelines to promote teleworking and so far, it is only applied in public offices, as a transitory, exceptional and preventive measure.
For Mexico, in its legal framework, there was no mention of teleworking as such, but there was talk of home work, and they declared it as equal to the face-to-face relationship where the same rights and obligations are enjoyed. Although there was a limbo around the regulation of teleworking, with the situation of the COVID-19 pandemic, the conditions were given to promote the discussion of a new bill for its regulation, for which last January 2021 A reform on teleworking was published in the “Federal Labor Law”, being the first regulation of this labor modality in the nation’s history.
And what do we see around Brazil?
In Brazil, meanwhile, teleworking was included in the Labor Law in 2017 in the Law no. 13,467/2017, through one of the many modifications that were made to a standard that dates back to 1943. Broadly speaking, this text “dispenses control of the working day and, consequently, the payment of overtime” to employees who work play at home. By March 2020, and with the arrival of the pandemic in the country, the federal government enabled employers to change the face-to-face regime for teleworking as a way of dealing with the state of public calamity, currently teleworking in the country regulated and used on a large scale.
With more than 30 countries in Latin America and the Caribbean and each region with diverse regulatory considerations and that have come slowly to modernize and adopt new work modalities, the arrival of the COVID-19 pandemic has served as a driving factor for the discussions and revisions of said regulations, and with it go little by little in the implementation of teleworking as a scheme with all the legal considerations to be a beneficial modality, both for employers and workers, currently being a successful modality already properly applied and regulated in many Latin American countries.
From Nukke we provide you with advice and specialized mechanisms to help you address these regulatory considerations, where to apply optimally in your productivity schemes under the modality of teleworking in your organization;