In 2022, changes were made to the labor laws As part of the Labor Agenda, new measures took effect on May 1, 2022, introducing changes regarding remote work in Portugal. Among the changes is the extension of remote work to parents of children with disabilities, chronic illnesses, or cancer.
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Remote Work in Portugal: New Rules and Employee Rights
The Labor Code defines telework as: work performed by an employee in a relationship of legal subordination to the employer, at a location not specified by the employer, using information and communication technologies. It can be carried out by employees already working at the company or by new employees who choose this work arrangement upon being hired.
In both cases, a employment contract or a written agreement must be drawn up as an addendum to the contract. The absence of such a document may complicate the presentation of evidence in the event of a dispute between the parties. However, the workplace initially agreed upon in the original contract may be changed at a later date by the employee, provided the employer gives written consent.
Teleworking with the same rights as face-to-face work
Remote workers have the same rights and responsibilities as their colleagues in the same position or role who come into the office. This includes aspects such as training, promotions, and career advancement; limits on normal working hours; rest periods; compensation for damages resulting from a work-related accident or occupational illness; and wages, which cannot be lower than they would be for in-person work.
The employer must provide adequate training on the information and communication technologies used in the context of telework. In addition, the employer must maintain regular contact with the company and the teleworker’s colleagues so that the teleworker does not feel isolated. As a general rule, there should be no more than two months between each contact.
The employee must attend work meetings, training sessions, or other activities requiring in-person attendance, provided that he or she is notified at least 24 hours in advance.
Respecting employees' privacy
People who work remotely generally do so from home, which raises privacy concerns.
As with on-site work, remote employees must have defined work hours. Outside of these hours, they may not be contacted by the employer, except in cases of duly justified force majeure. The employer must refrain from contacting an employee during rest periods, whether the employee is working remotely or not.
An employer cannot expect an employee to be available 24 hours a day, seven days a week. The employer may visit the employee to monitor their work and work equipment, but only under certain conditions. Visits may only take place during working hours, with 24 hours’ advance notice and the employee’s consent.
The law also allows an employer to send a workplace safety officer to inspect the employee’s working conditions. However, here too, there are rules that must be followed:
- The visit may only take place between 9:00 a.m. and 7:00 p.m., at a time agreed upon with the employee and during working hours.
- For example, if the workday ends at 5:00 p.m., the visit cannot take place between 5:00 p.m. and 7:00 p.m.
Computer and Internet access provided by the company
It is the employer’s responsibility to provide all equipment and systems necessary for telework. The telework agreement must specify whether this equipment is provided directly by the company or whether the employee may purchase it and submit receipts for reimbursement. It must also specify how this equipment may be used. However, the employer may not prohibit the use of information and communication technologies during meetings called by employee representative bodies, such as employee committees or unions.
All costs associated with working from home, including increases in energy and Internet access costs, must be covered by the employer. The same applies to expenses related to the maintenance of equipment and systems. This type of compensation is not considered earned income, including for tax purposes.
Teleworking with meal allowances
In principle, meal allowances should continue to be paid. The employee remains in the employer’s service and incurs expenses related to meals. However, the law is unclear on this point, but it does state that an employee working remotely must not receive less than what they would receive while working on-site.
However, it is also important to take into account the provisions of employment contracts, any collective bargaining agreements, or company policies accepted by the employees. If the agreement stipulates that the allowance is payable only when the employee goes to the company’s premises or to another location designated by the company, then it is legitimate for the meal allowance to cease being paid.
The transportation allowance may not be payable because there is no travel involved and the employee does not incur any expenses.
Insurance and work accidents
Employees who work from home remain covered by workers’ compensation insurance. If an employee is working remotely and suffers an accident, the insurer must compensate them, provided the accident is considered a work-related accident.
To avoid complications, employers are advised to formalize this plan with the insurer. To do so, they must provide the following information for all employees covered by this exceptional situation:
- the employee's name; ;
- normal working hours (authorized dates and times); ;
- the workplace (the address where the work will be performed); ;
- and prior authorization from the employer.
And what counts as a work-related accident? Any accident that occurs at the workplace and during working hours. The workplace is the location where the employee is present or is required to go as part of their job and where they are directly or indirectly under the employer’s control.
With regard to working time, in addition to the normal work period, it also includes the time preceding the start of work—as part of preparatory or work-related activities—and the time following it—also as part of work-related activities—as well as normal or forced interruptions in work. When an employee is working from home, any incident occurring during working hours, or during the preparation for or completion of work, may be considered a work-related accident.
Fixed-term or indefinite telecommuting
Telework may be for a fixed or indefinite term, meaning it may or may not be defined from the outset. During the first 30 days, either the employer or the employee may terminate this arrangement. If the arrangement is fixed-term, its duration may not exceed six months, with automatic renewal for an equivalent period, unless one of the parties objects in writing at least 15 days before the renewal date.
If the employment relationship is not for a fixed term, either party may terminate this form of employment. To do so, the party must give the other party at least 60 days’ written notice. Once the telework arrangement ends, the employee resumes their duties at the employer’s premises or at another location agreed upon by the parties.
Who can be refused telework?
As a general rule, telework requires an agreement between the employer and the employee. However, there are situations in which the employer cannot refuse the employee’s request, provided that telework is compatible with the employee’s job duties and the employer has the resources to implement it.
- Workers responsible for caring for children up to three or eight years of age
Those with children under the age of three may work from home. This right is extended to children up to eight years of age for single-parent families, with the exception of companies with fewer than ten employees. In two-parent households, if one parent has a job compatible with remote work, they may request to work from home. If both parents can perform their duties remotely, they will be eligible for this arrangement only if they share it equally, in equal periods, with a maximum limit of 12 months. For example, the father can work remotely for three or six months, then the mother takes over during the following quarter or semester, and so on.
Employees who have children with disabilities, chronic illnesses, or cancer—and who live with them—are also entitled to work from home, regardless of the child’s age.
- Victims of domestic violence
Victims of domestic violence represent another exceptional situation. They may request to work remotely in cases where they have filed a complaint against the abuser and have had to leave the home. This measure is intended to prevent the abuser—who is likely aware of the victim’s usual workplace—from continuing their violent behavior.
- Non-primary informal caregivers
Workers who have been recognized by Social Security as non-primary informal caregivers may request to work remotely for a maximum period of four years, whether consecutive or not. To do so, the law requires that this status have been officially recognized, subject to proof of such status. This is only possible if the status is compatible with the employee’s job and the employer has the necessary resources and means.
In this case, the employer may object to telework only for compelling reasons related to the operation of the business. To do so, the employer must obtain a favorable opinion from the Commission for Equality in Work and Employment. If the opinion is unfavorable, refusal is possible only through a court decision upholding the employer’s justification.
How to proceed for income tax and additional teleworking expenses
Expenses incurred for the purchase or use of equipment necessary for work are considered additional expenses. The employer must reimburse the employee for all such expenses, provided they are incurred in the performance of work. This includes costs related to energy, communications, and maintenance.
The Labor Code stipulates that, under a telework agreement, an employment contract, or a collective bargaining agreement, the compensation owed to the employee must be specified. In the absence of such a determination, additional expenses will be considered to be those related to the purchase of goods or services that the employee did not have access to prior to the conclusion of the telework agreement, as well as those resulting from a comparison with the employee’s similar expenses during the last month of in-person work.
However, receipts for additional expenses taken into account for reimbursement of telework expenses do not have to be issued in the employee’s name. They may have been issued in the name of another household member.
Payment of the corresponding compensation is due immediately after the expenses are incurred. These expenses represent a cost to the employer and cannot be considered income for the employee for income tax purposes, up to an amount to be determined by a decree issued by the members of the government responsible for tax and Social Security matters.
