Telework means work performed regularly off-site
the work establishment using tools of electronic
communication. The meaning is therefore the same
as what is commonly referred to as remote work.
However, the special nature of telework makes it a
suitable arrangement for only some types of work.
The employee and the employer can make their
decision to go with telework in two ways. Firstly,
straight away at conclusion of the employment
contract. Secondly, during the employment, by
agreement of the parties, on the employee’s or the
employer’s initiative. However, the employer may
not unilaterally arrange for the employee to
perform telework. The employee’s consent to be
employed on such basis is necessary.
In order for work to be considered telework, the
regularity requirement must be met. So if the
employee performs his or her work remotely on a
few occasions only, from time to time, e.g. working
from home, it should not qualify as telework.
However, it is debatable whether or not work
performed off-site regularly but over a minority of
the working time only (e.g. once a week) can be
considered telework. The intention of the
legislators did not include that, but since some of
the legal commentators currently support that
interpretation, each case should be examined in
detail on its own merits.
The telework arrangement entails a number of
obligations for the employer. The employer is
among others required to:
1. supply the employee with the equipment
necessary to do telework;
2. insure the equipment;
3. pay the equipment installation, servicing,
operation, and maintenance costs;
4. provide the teleworker with technical support
and the necessary training to operate the
equipment.
The above obligations can be regulated otherwise in
a separate agreement concluded between the
employee and the employer.
As telework is performed off-site, the employer is
entitled to monitor the employee on a limited basis
and with his or her prior consent. It also needs
bearing in mind that the teleworker cannot be
treated less favourably than the other employees
employed to perform the same or similar work,
taking into account the different conditions
associated with remote work. The employee cannot
be discriminated against in any way for deciding opt
for the telework arrangement or for refusing to be
employed on that basis.
However, the fact that the employee performs
telework does not release the employer from its
obligations relating to occupational health and
safety. However, given the specificity of telework, these are limited.
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Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield. It is intended to provide only a summary of
certain recent legal developments of selected areas of law. For this reason the information contained in this publication should not form the basis of any
decision as to a particular course of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in individual cases.
The services of a competent professional adviser should be obtained in each instance so that the applicability of the relevant legislation or other legal
development to the particular facts can be verified.