In Ecuador telework is regulated since 2017. Its implementation during the years preceding the Pandemic was rather slow. However, the new reality triggered by Covid-19 accelerated its implementation, mostly to ensure business continuity.
In the last 3 years this modality of work has allowed many companies to question the need to have a physical space to develop their business, which generates significant savings in the operation, due to offices’ reduction or elimination of space and the costs associated with it (e.g., leasing, electricity, among other services).
Depending on the employer’s activity and their organizational culture, there are a significant number of employers who have decided to remain in a flexible format which allows their employees to alternate between working at the office and at home. Employers have even chosen to hire individuals based in other provinces or countries under this modality.
In June 2022, the Humanitarian Support Law reformed the Labor Code and formally included telework as a type of employment agreement and provided that there are 4 modalities of telework: (i) autonomous; (ii) partial; (iii) mobile and (iv) occasional.
On December 23rd, 2022, the Ministry of Labor issued a new regulation -Ministerial Agreement MDT-2022-237- which modified a few conditions regarding teleworking.
Although the Ministerial Agreement does not elaborate on the scope of the employer’s obligations, it is important to analyze its context, mainly on the following:
|• Telework modality shall be agreed by the parties. This implies signing an agreement that reflects the will of both parties (e.g., employment agreement addendum). Information that must be registered before the SUT -Ministry of Labor online platform- within 15 days of its execution.|
|We recall that the previous regulation provided that teleworking could be implemented by employers’ unilateral decision.|
|• The Employer is responsible for providing the necessary equipment and supplies. This obligation entails that the employer shall cover any expense related to teleworking activities, such as: work equipment, electricity, internet, telephony, among others.|
|The Ministerial Agreement clarifies that the payments performed by the employer for the expenses associated with teleworking, shall not be part of the employees’ remuneration.|
|• The Employer must ensure a safe and healthy teleworking space. The employer must equip the workstation with the implements that guarantee occupational health and safety, i.e., it must provide ergonomic chair, desk, mouse, keyboard, screen, among others.|
|If telework implementation is the employee’s initiative, the fulfillment of this obligation will be their responsibility.|
|• The Employer shall guarantee the right to disconnection. Employee disconnection shall be at least 12 continuous hours in a period of 24 hours.|
|The employer shall implement a disconnection policy. It shall contain: (i) training measures; (ii) guidelines for compliance control; (iii) implementation of technological mechanisms to ensure disconnection (e.g., restriction of access to communication platforms); and (iv) complaints mechanism.|
|The right to disconnection does not apply to employees with management and trusted positions.|
Statistics indicate that employees’ productivity increases if they maintain a flexible work format, that is, under our regulatory context, known as “part-time telework”.
To ensure a healthy implementation of telework, employers shall engage to comply with the legal obligations. Special attention must be given to health and safety duties, as non-compliance may result in fines by the authorities or even in employer liability before the Social Security Ecuadorian Institute (IESS), the later in the event of accidents or occupational diseases.
To prevent the abovementioned, employers shall have evidence that allows to demonstrate their compliance, such as those detailed below:
• Health and safety regulations and policies delivery/reception record.
• Evidence of training provided to ensure the safety and health of teleworkers.
• Work equipment delivery/reception record.
• Telework workstation photos in archive.
Teleworking is the new labor reality, employees -especially the younger generations- demand flexibility and employers shall adapt to it, without leaving aside the commitments and obligations that this implies.