The return to the offices and the future of teleworking is in the debate of companies, which are beginning to silver the return to face-to-faceity after a forced conversion to Covid teleworking. Companies must collectively negotiate teleworking when sanitary conditions are no longer extraordinary, in accordance with Law 10/2021, of July 9, on remote work.
Alfredo Aspra , head of Labor Law at Andersen, and María del Mar Alarcón Castellanos , Partner of counsel at Human & Law, URJC professor and Doctor of Law, respond to eE on teleworking – a work model that has tripled with the pandemic – hybrid that arises in these circumstances and on the rights to which the employees will be welcomed and on the return to the offices.
Negotiations after the Covid
The key in these labor regulations is that, due to the nature of the health crisis, classified as a pandemic, the weight in the decisions is of the health competencies and the ministries of Social Economy and Labor are relegated.
As soon as there are no sanitary restrictions due to the pandemic, companies must collectively negotiate under Law 10/2021, of July 9, on remote work , which is the law for teleworking in non-sanitary conditions. extraordinary. The modus operandi that certain companies in the banking sector have begun to operate is to collectively negotiate the definitive ordinary teleworking.
The foreseeable return to the offices that the Spanish business community is proposing towards the end of the summer is hybrid. That is, alternating several days in the office, with several days of remote work and even a ‘pivot’ day. The business guideline, as shared with eE by the expert in labor law, Alfredo Aspra, is aimed at this model that combines both work options.
This model is not the definitive one. The teleworking of the future, as well as the return to the offices, hangs by the thread of uncertainty due to the extraordinary health situation , because we are regulated under the Covid regulations and dependent on health regulations such as the safety distance or the use of a mask indoor. At this time, the regulation that governs is Royal Decree-Law 28/2020, of September 22, on remote work .
We have to be “very aware of the evolution of collective bargaining”, but what is indisputable is that we cannot go back. If teleworking is a favorable situation for a worker and a company, the compensation for expenses that this generates must be considered and negotiated fairly, says María del Mar Alarcón Castellanos.
The Doctor of Law recalls that different regulations issued in the midst of the pandemic have continued to insist on the possibility of teleworking and its preferential nature during the health crisis (RDL 8/2020, which also contemplated the self-assessment of occupational risks when the worker was teleworking, thus simplifying the management of occupational risk prevention; RDL 15/2020, among others). A step back would mean a return to presence, a deeply rooted business culture in this country.
It should be remembered in advance that vaccination in Spain is, with exceptions, voluntary, since no citizen, and therefore no worker, could be forced to be vaccinated against their will, as provided in article 2.1 of Law 41 / 2002 of November 14.
In some exceptional cases, such as epidemics or urgent health reasons, the imposition of compulsory vaccination, or at least a policy that limits its decision, would be included in various organic laws.
Now, the problem derived from Covid-19 responds to a health crisis classified as a pandemic, so both the policy and the vaccination strategy would fall within the competence of public health , so it would not be allowed to apply a different treatment of workers with respect to the rest of the citizens as a consequence of the business obligations regarding the prevention of occupational hazards.
In conclusion, given that for the moment vaccination has not been legally mandatory, vaccination cannot be imposed on the occasion of the return to work in person.
The company cannot impose vaccination as a condition of return to the office
Requesting information on the vaccination of workers should be directly linked to a protocol previously prepared and implemented, which justifies the reasonableness and need to have the merited information, taking into consideration that it has special protection by the applicable regulations on the matter. of data protection.
Requiring the Covid certificate would limit the fundamental right to free movement for reasons of public health, as stated in the recitals of the European Union Regulation.
On the other hand, the return to the offices could provoke a discriminatory prism, in which the company could offer the employee to stay at home, prioritizing only the operation of the company in matters, thus offering exclusive treatment.
Facebook postpones the return until at least 2022
The American multinational Facebook informed its more than 60,000 employees that it is delaying the date of the physical return to the offices, which was scheduled for October, until at least January 2022.
The firm that owns the most used social network in the world follows the steps of other big technology companies such as Google, Amazon and Apple, which have also postponed their plans to return to physical work due to the increase in cases of the delta variant of the coronavirus.
“It is the data and not the dates that guide our decisions regarding the return to the office,” said the company headed by Mark Zuckerberg in a statement, in which he clarified that the delay affects all its offices in the United States and ” in other countries”.
“We continue to work with experts to ensure that return-to-office plans prioritize the health of everyone,” they added from Facebook. In early August, Amazon also postponed the return of its corporate employees until January next year, while Apple delayed until October at least.
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