Last updated: 2 May 2018
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- Legal News
In an effort to bring Romanian legislation in line with European practice and current working conditions in light of the development of technological means of communication, Romania has just adopted a special law on remote working.
Law no. 81/2018 on remote working was published in Official Journal no. 296/02.04.2018 and has entered into force on 05.04.2018. According to the definition stipulated by the law, remote working is a form of organization that allows the employee to his/her duties, on a regular and voluntary basis, in a place other than the workplace organized by the employer, at least one day per month, through information and communication technologies (ICT).
Thus, without canceling in any way the provision of the Romanian Labor Code concerning the "work from home", the new law expressly regulates the situation in which the employee works:
• at his/her usual place of residence;
• in another place (telecentre, co-working space etc.)
As regards the field of application, the law does not provide for any restriction with respect to the various industries or positions, since the specificity of the activity in question allows remote work.
Thus, for example, while the administrator of a company’s website can perform his duties outside the company’s premises, through ICT, a worker of the same company whose activity depends on the use of machines or tools installed on the company's premises could not benefit from the provisions of Law no. 81/2018.
Indeed, remote working can be accessible to any employee who is not conditioned by the workplace to regularly and voluntarily perform an activity of the same quality, using information and communication technologies.
Please note that the employment contract of a remote worker must contain, in addition to standard clauses, the following elements:
a) the express mention of the fact that the employee works under a remote working regime;
b) the period and/or days during which the remote worker performs his/her duties outside the premises organized by the employer;
c) the place(s) agreed upon by the parties for the remote working activity;
d) the hours during which the employer can check the remote worker’s activity and the specific control methods;
e) how the records of the remote working hours are kept;
f) the responsibilities of the parties, approved according to the location(s) where the employee will work remotely, including responsibilities in terms of occupational safety and health;
g) the employer’s obligation to ensure transport to and from the remote working place, the equipment used by the remote worker, where applicable;
h) the employer’s obligation to inform the remote worker of the provisions of the statutory regulations, the applicable collective employment agreement and/or the internal rules regarding the protection of personal data, as well as the remote worker’s obligation to observe such provisions;
i) the measures taken by the employer to avoid the isolation of the remote worker from other employees, measures that must offer the remote worker the opportunity to regularly meet his/her colleagues;
j) the conditions under which the employer bears the costs related to the remote working activity.
The conclusion of a contract/an addendum to the employment contract concerning remote working without providing for the above clauses is considered an offence and is punishable by a fine of 10,000 lei per person (approximately 2,200 euros) for non-compliance with letter a), respectively 5,000 lei (approximately 1,100 euros) for non-compliance with the provisions mentioned at letters b) - j).
ADVANTAGES AND DISADVANTAGES OF THIS LAW
Remote working brings benefits to both employees and employers. Remote workers have the right to a more professional, family-friendly and personal work environment, which can reduce stress, or they can save time and money on transportation or child care. For businesses, remote working also saves money by reducing the cost of renting a workspace, maintenance costs or transportation costs. And while productivity increases are estimated, the rate of absenteeism can be substantially reduced.
And yet the disadvantages of remote working are also to be considered. Remote working implies delocalization, hence the difficulty of supervising the employee. The employer is in a delicate situation, where he cannot properly monitor his employees and their work. Team spirit and communications are also rarer and it is mandatory to have an eye on everything at once.
Although the law is about more flexibility for employees, who can work outside their employers' premises, this flexibility is limited. In fact, the employee cannot organize his own work schedule or unilaterally choose his place of work, without the prior consent of the employer.
Another problematic aspect is the manner in which the employer must comply with its legal obligations to ensure the safety and protect the health of its employees. Thus, the law provides for the employer's obligation to ensure the conditions enabling the remote worker to receive sufficient training in the form of appropriate information and instructions at his place of work and also in relation to the use of display screen equipment: when hired, when changing his/her workplace, when introducing new work equipment, when setting up any new work procedure.
In return, the law provides for the first time the obligation of the remote worker to inform his employer about the work equipment and the working conditions.
The law henceforth stipulates the obligation for the employee to allow his employer's access to his remote workplace, as much as possible, in order to take appropriate safety and health measures or to investigate events (potential accidents). Previously, the law did not provide for the employee’s obligation to allow the employer’s access to the remote workplace; therefore, the employer was unable to fulfill its legal obligations as provided by the Labor Code and Law no. 319/2006. However, the difficulties will persist for the employer in the case where the remote worker works in a place owned by a third party and such third party refuses the employer’s access.
One option would be for the parties to provide in the contract what party provides the technological means and/or work equipment, as well as who is responsible for the installation, the verification and maintenance of such work equipment.
As for the work hours, in addition to the special provisions of the employment contract concerning the remote working period and/or days, the schedule according to which the employer checks the employee’s activity (as well as the conditions under which this control is carried out), the record of remote working hours, one must also comply with the provisions of the Labor Code regarding the recording of working hours
Thus, the employer must keep record of the hours worked each day by an employee, indicating the start and end time of the work. Thus, the employer will have to have a register of the hours worked at the headquarters, as well as the hours worked remotely, in third-party places.
Please also note that the law expressly provides for the remote worker’s possibility to work overtime, at the request of the employer. However, compared to the former law, the employer must have the written agreement of the employee and no longer a simple standard agreement. Failure to comply with this provision is considered an offence and is punishable by a fine of 5,000 lei (about 1,100 euros).