Some issues of remote work in a national and international context – Emploi et RH

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Since the start of the COVID 19 pandemic, more and more employers are turning to remote work. In some cases this was done voluntarily in others due to government pressure on employers to introduce remote working whenever possible.

After 1.5 years of practical experience, we have summarized the most common challenges employers have faced that are often not addressed in local legislation.

We’ve outlined the “pros and cons” of some of the main issues below:

  • whether to introduce remote work by agreement or order

  • is it important to fix the exact workplace

  • what are the practical problems of electronic communication

Contract or order

Under Bulgarian law, remote work can only be introduced by mutual consent of both parties. However, exceptionally, the new COVID 19 legislation1 which was enacted last year provided an additional option – employers had the right to unilaterally send employees to work from home during the pandemic2. This seemed to be a practical and useful solution as it relieved employers with a larger number of employees from having to arrange a meeting with each of them and negotiate bilateral remote working agreements. In contrast, whenever the parties enter into a bilateral agreement, they are free to negotiate specific terms. Contrary to the above, in the event of a unilateral decision by the employer, the latter only has the right to change the place of work but not to introduce other specific provisions.

In the event of the introduction of remote working by unilateral order, all employees must return to the office immediately after the end of the respective pandemic (i.e. as established in the respective government laws). This means that employers must be able to get all remote employees back to the office within a day – a task that seems almost impossible in the case of a larger number of employees.

On the other hand, whenever remote working is introduced under a bilateral agreement, the parties are free to agree on a duration of remote working at their discretion.

It seems a simple approach to expect employers to remain responsible for the maintenance of any equipment they provide to employees for their work. However, it may be useful to consider whether the employer should also assume obligations regarding the repair and maintenance of equipment belonging to employees, in the event that they use it for their work. Ultimately, the main task of the employer is to ensure smooth and uninterrupted work of its employees, regardless of the legal owner of the equipment necessary for the work.

Actual workplace

In the event of an order introducing remote work, employers are only allowed to order employees not to work from the office. However, it does not seem reasonable to expect them to be able to determine the exact location of each employee’s remote work.

This opens up a lot of other questions such as:

Health and safety remains an employer obligation when working remotely. Employers are mainly responsible for putting in place appropriate health and safety instructions and informing their employees about them. However, it seems difficult to expect employers to be able to instruct their employees properly in case they have no information about their actual workplace.

Employers have the right to carry out inspections of employees’ workplaces. However, they will likely face additional difficulties in carrying out health and safety inspections at their employees’ workplaces if they have no information about their whereabouts.

  • Equipment and consumables

Under the law, the employer is required to provide the equipment and consumables necessary for remote work at his own expense. There is an option for the parties to agree otherwise which cannot be exercised if the employer unilaterally introduces remote working.

This concerns obvious things like the laptop and the internet, but can also extend to issues like electricity and heating bills.

It is of the utmost importance for the employer to know where the employee actually is whenever the employer is considering a business trip. Otherwise, the employer will not be able to determine whether a specific meeting is considered a business trip or not. It should also be noted that whenever an employee is working remotely from another city, the trip to the employer’s office will be considered a business trip.

If employees decide unilaterally to work abroad, this can lead to serious consequences for the employer, as his obligations with regard to taxes and social security contributions can be completely different. Therefore, it makes sense to introduce a restriction on employees working abroad without the explicit consent of the employer. This option is not provided for the unilateral introduction of telework, which is an additional argument for recommending to employers, whenever possible, to opt for the signing of bilateral agreements.

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It is almost impossible for the employer to dismiss one of his employees, but also to serve documents during remote work, unless the employer has succeeded in introducing electronic communication. In practice, if the employer is not aware of the actual location of the employees, it takes great effort to find them and serve them with all the employer documents.

Electronic communication

Electronic communication seems to be the only reasonable option for communicating with employees during remote work. Unfortunately, Bulgarian legislation remains very conservative on this subject and establishes a long list of technical requirements that employers must take into account in order for electronic communication to be considered valid for the purposes of local legislation. At issue – email communication is not enough, new solutions already available on the market are still under development and often considered somewhat expensive for small and medium enterprises, employees need to be trained to start using the new technology and in addition to this by law, employees have the ability to withdraw their consent to receive electronic communications at any time at their discretion. In fact, this has the consequence that employees may try to delay serving official documents when they are already anticipating “bad news”. This puts employers in a very difficult situation because in fact, even if they decide to invest in new technologies, employees can easily render these efforts obsolete.

Remote work in an international context

The most natural cause why remote work has become the “new normal” is that the job market has shifted from national to international. More and more often, employers are starting to hire employees located in other countries. In this case, the following issues should be carefully considered and are in fact often underestimated:

  • What is the most appropriate law to govern the agreement

On the one hand, employers wish to stick to their existing practices, on the other hand, the mandatory provisions of the employee’s local law will always prevail. Therefore, employers should carefully consider the risks associated with each of the two approaches.

Depending on the employee’s exact location, the employee may be required to work night shifts to match the employer’s working hours. In such cases, it will also be examined whether or not additional remuneration is due for night work. The law allows the employer to exclude, among other things, night work for remote employees.

Depending on the state where the employee is located, it may be necessary to comply with certain migration provisions, such as carrying out a market study, in order to be able to hire a limited number of foreigners only (this i.e. from non-EU countries).

  • Local law requirements in the employee’s home state

Usually, the employer will have to pay at least social security contributions directly in the employee’s home state, which requires obtaining additional local records, opening a bank account, etc.

Implementation of additional insurance

In many cases, employers have allowed employees to remove equipment from the employer’s premises for the first time. Whenever this equipment has a higher value, it may be advisable to take out additional insurance. The same applies if certain equipment has already been insured but the insurance does not cover its removal from the employer’s premises.

All of the issues set out above should be carefully considered in each case so that the employer is aware of all risks and potential mitigation strategies. Remote working seems to have grown in a lot of sectors, many employers have also seen an option to cut costs by reducing their office space. It looks like remote work will remain at least as popular as it is today. Therefore, proper procedures must be put in place to ensure the structuring of optimal arrangements with each employee.

Footnotes

1 The new laws include the new law Law on measures and actions during the state of emergency decreed by a resolution of the National Assembly of March 13, 2020 and on the treatment of the consequences, amendments to the Labor Code

2 The pandemic is officially declared by a government decree establishing a state of emergency or an extraordinary pandemic situation.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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