Faced with the need to address the effects caused by the Covid-19 pandemic, El Salvador, as well as many other countries in Central America, were forced to legislate on the figure of the home office or remote work, and, thus by Legislative Decree number 600 dated March 20, 2020, the Legislative Assembly approved the Law of Regulation for remote work.
Unlike other countries in the region, such as Costa Rica, which already had a specific rule to regulate labor relations derived from remote working, El Salvador had to accelerate the process of analysis and discussion until reaching the approval of the Law, which after concluding the formation process, it was published in the Official Gazette 123 on June 16th, 2020 and entered into force for Salvadorans eight days after its publication. By then, many companies had already sent their collaborators to work from home, in compliance with different Executive Decrees that aimed to contain the contagion of Covid-19, since the current Labor Code did not prohibit remote working; however, we did not have special legislation on the matter.
Content of the Law of Regulation for remote work
The Law of Regulation for remote work in force since June 2020, collects the concrete labor rules for the regulation and implementation of this modality of work, both for the public and private sector and within the essential elements regulated, are the following:
- The employer defines the jobs that can be subject to remote working.
- The individual employment contract must contemplate the modality of remote work and the conditions under which the work will be executed, and if the employment relationship is already in force, there must be an addendum to the contract;
- The employer must provide the remote worker the equipment, connections, tools, programs, and applications necessary for the execution of their work, as well as cover the costs of the operation of these. In the cases that the worker is the one who provides them, the employer must compensate him for the depreciation and assume a subsidy for the cost of electricity and internet services on a proportional basis;
- Employers must have policies on the conditions of teleworking, which are of prior knowledge of the workers, whose minimum contents must be defined by the Regulation of the Law of Regulation of Teleworking and the Internal Regulations of the Company;
- The modalities of remote working contemplated in the law are:
- At home: to the executed by the worker at home.
- In Work Centers: to the executed in a center designed for the work, which has shared resources and the necessary computer and telecommunications facilities.
- Mobile and Itinerant: when the workstation is not located in a specific place.
- Alternated: when workers only work at home or in a work center on certain days of the week and the rest of the time they work in person.
- Connected: when the remote worker is permanently connected and subject to any form of control by the employer, within the working day.
- Disconnected: The worker provides his services by connecting to the employer’s technological systems, however, his communication with the company is not permanent or constant.
Regulation and Public Policy for non-existent remote working
In the Law Regulation for remote work, it was established the responsibility of the President of the Republic to decree It within a maximum period of six months from its entry into force and also, the obligation of the Ministry of Labor and Social Welfare to develop and approve the Public Policy for remote working, within a maximum period of nine months from the Law entry into force.
The Regulation of the Law should be defined the minimum requirements for policies on remote working conditions that must be established by employers who employ workers in this modality.
In the country there is still no public policy on this modality of work and neither has been decreed Regulations for the application of this special rule.
Therefore, the parameters for the calculation of the subsidy for the payment of electricity and internet services in a proportional manner for the development of the work have not yet been established.
How can the Companies fix the percentage of subsidy for the remote workers and other necessary conditions not indicated in the Law?
By not having in the country a Law Regulation in which is defined the minimum parameters that must contain the policy of remote work in the companies, the Employer can establish its guidelines that are fair and that are not disadvantageous to the worker.
The above is based on the provisions of Article 6 second paragraph of the Law, which states that the conditions under which remote working will be executed and its details by the agreement between the parties, fully observing not to transgress the provisions of the Labor Code and other rules of labor character.
In that sense, the Law grants certain freedom so that the employer and the worker can agree on the conditions under which the remote work will be executed, under the premise of respect to the minimum obligations of each party and the labor guarantees in force, having to define therefore the amount to be paid which must be proportional to the time that the worker works at home.
Another of the aspects that must be defined by both parties in the policies and the Internal Regulations of the company is the evaluation mechanisms to identify compliance with work schedules, goals, and efficiency in the performance of the worker; the conditions of information security, data protection, and confidentiality; as well as the measures to be taken in the place where the work is performed, to ensure the safety and occupational health of the teleworker.
Finally, the Law of Regulation of Remote working states that all matters not provided for in this rule, shall apply in addition to the provisions of the Labor Code and other laws governing labor relations, as applicable, so it is important to give strict compliance with issues related to working hours, schedules, weekly rest days and other labor benefits, social security, social security, and occupational health and safety.
At LatinAlliance we specialize in advising you in the compliance of the main labor obligations that allow companies to enjoy tranquility and harmony in the relations with their collaborators, thus increasing the productivity of their businesses.