Latin America Remote Work Update: Latest Developments | Seyfarth Shaw LLP

Remote work regulations are the new reality that companies are learning to navigate in recent years. This learning process is not yet complete. Around the world, countries are still trying to adapt their employment regulations to the social and employment developments that have resulted from the COVID-19 pandemic.

Latin America is no exception to this trend. While some countries in the region already had remote working rules before the COVID-19 pandemic, most of these regulations were rigid and onerous, requiring adjustments to allow employers to adapt quickly to these new circumstances. This is the case of Brazil, Colombia and Peru, among others, which have implemented (some temporarily, others permanently) new measures and regulations relating to remote work. In other countries where no remote regulations existed before the pandemic (e.g. Chile), new remote work regulations were enacted in a short time.

The speed with which these laws were enacted and the particular circumstances of the pandemic have forced countries to continue to adapt and regulate remote work.

Below are some of the latest remote work legal updates and developments that have been passed or are pending in key Latin American countries over the next quarter (Q2-2022).

Brazil

The Brazilian Remote Work and Telework Law has been the subject of continued extraordinary regulatory measures to promote flexibility in the wake of the COVID-19 pandemic.

The most recent legal regulations are Provisional Measure No. 1,108 and Provisional Measure No. 1,109, both enacted on March 25, 2022, by which the Brazilian government amended the provisions of the Brazilian Labor Code relating to remote work. . These regulations took effect immediately and will be in effect temporarily for 120 days (until July 25, 2022), unless the Brazilian Congress definitively ratifies them.

The main updates are:

  • Clarifies the definition of “remote work”, which is defined as the provision of services outside the employer’s premises (regardless of whether the work is principally carried out outside the employer’s premises or not, which was the prior obligation to telework), and subject to the use of technological communications.
  • Clarifies that if employees with remote work contracts need to come into the office because their duties require it (even on a regular basis), they will still be considered remote employees.
  • Changes working time requirements for employees. Previously, all employees working remotely were excluded from working time obligations and overtime pay. From now on, only employees hired on a task or production basis are excluded from working time and overtime requirements. Employees hired on a daily basis are subject to working time requirements and are entitled to overtime pay.
  • Provides that the use of technological work tools (e.g. computer, mobile phone, Internet applications) outside the normal working day does not constitute on-call time, unless otherwise agreed in the employment contract or agreement applicable group.
  • Provides that local rules and collective agreements applicable to employees working in the office also apply to employees working remotely, regardless of their physical location.
  • Extends the application of Brazilian remote work law to employees engaged in Brazil but working remotely outside of Brazil (unless otherwise agreed).
  • Reiterates the need to expressly agree to remote work in the employment contract and empowers the parties to agree on hours and means of communication.
  • Exempts employers from paying for expenses incurred by remote employees when returning to company premises after working in a location other than that provided for in the employment contract.
  • Provides for a requirement to give priority to employees with disabilities or children four years of age or younger when determining who can fill a vacant telecommuting position.

Colombia

There are three ways of working remotely in Colombia:

Telework, created by Law 1221 of 2008 and regulated by Decree 884 of 2012. This modality allows employees to provide services outside the usual workplace using information and communication technologies as a support. In this context, employees must work remotely at least two days a week.

Work at home, a modality designed and regulated by Law 2088 of 2021 as a result of the COVID-19 pandemic. Due to exceptional, occasional or special circumstances, it allows employees to temporarily perform their work functions outside their usual place of work by using information and telecommunications technologies.

Remote work, also designed in the wake of the COVID-19 pandemic through Law 2121 of 2021, allows parties to agree on 100% remote working. This framework requires exclusive communication through information technology, including the performance of the employment contract.

Recently, the Colombian Ministry of Labor issued Decree 555 of April 9, 2022, regulating the Remote Work Law (Law 2121 of 2021) and Decree 649 of April 27, 2022, regulating the Home Work Law (Law 2088 of 2021).

The main regulations include:

  • Remote work: (1) the specific content that must be included in the remote work contract; (2) employer obligations regarding occupational health and safety, work tools, training and compliance; and (3) employee obligations regarding compliance, health and safety, and work tools.
  • Homework: (1) the definition of occasional, exceptional or special circumstances; (2) the right of employees to request to work from home; (3) the procedure and formalities for requesting and granting the right to work from home; (4) obligations of the employer, employee and risk entity (part of social security) during homework; (5) the right to agree on the payment of compensation for the use of employees’ work tools; (6) the possibility of working from home from abroad; and (7) termination of the work from home arrangement.

Mexico

On January 11, 2021, the Mexican government released the decree that enacted remote work regulations in Mexico.

To date, no changes have been made to this new regulation. However, on July 18, 2022, the 18-month period granted by the Mexican government to the Mexican Ministry of Labor and Social Protection to publish an Official Mexican Standard (NOM) regulating occupational safety and health obligations will expire.

This NOM, among other things, must contain the relevant regulations on ergonomic and psychological factors and other risks that may have adverse effects on the life, physical integrity or health of employees who work in telework mode.

Peru

In Peru, there are two main modalities that allow remote work:

Telework, regulated by Law 30036 of 2013, which allows employees to work without physical presence in the office through technological means. This framework requires the agreement of employees and the payment of compensation for remote tools and equipment; and

Remote work, which was enacted in response to the COVID-19 pandemic and offers a more flexible and less costly modality. Remote work allows the employee to work from home or another remote location, provided the nature of the work permits. This modality does not require the agreement between the parties nor the payment by the employer of the remote tools and equipment.

Decree No. 026-2020 which implemented remote work in Peru was issued on a temporary basis and was originally scheduled to be active until January 31, 2021. However, it was extended until December 31, 2022.