A high percentage of Chileans have already completed more than a year with this new modality called «teleworking», since the pandemic began in March 2020.
The way we relate to each other and carry out our activities has changed and the workplace was no exception. Many employees found themselves from one day to the next fulfilling their tasks from home, which caused a series of poorly planned work adjustments with a lot of improvisation.
In this context, according to figures from the Labor Directorate, there are already close to 300 complaints that have been received since the beginning of the health crisis, accusing employers of not having adequate behavior when supporting their workers to implement this new system in their homes.
Added to this is a circular controversy from the Undersecretary of Public Health that was released on social networks, which gave workers confirmed with a positive PCR by Covid the possibility of continuing to work remotely, after agreement with their employer.
Situation that put the Comptroller on alert, classifying this indication as illegal, for not being empowered to dictate instructions in relation to medical licenses, “since it is a social security benefit, which is protected by the constitutional guarantee of art. 19 N18”, details the statement.
Daniela Jaraof TotalAbogados.clclarifies that in legal terms a change must be made in the contract that makes explicit the new way in which the services are being provided. “It is necessary to make an annex to the contract, since it will regulate the labor relationship between employee and employer, in a different format than the one originally agreed upon. The Labor Code establishes that any modification that imports substantial changes that may positively or negatively affect the worker, to the conditions of the employment contract, must be agreed upon and signed by the parties.explains the lawyer.
In the case of the use of tools such as computers, telephone and internet, Jara points out that “Law 21,220 clearly establishes that it is the employer’s obligation to provide their workers with the necessary tools and equipment to carry out their duties correctly. In this sense, the Labor Directorate in its opinion No. 258/003, establishes that although the company has the obligation to deliver the necessary elements for the worker to fulfill his functions, nothing prevents it from being agreed that the worker can occupy their own resources to carry out their functions, yes, with this agreement, the employer must deliver a monthly allowance that helps cover part of the wear and tear and use of their own supplies to work. In addition, to assume the costs of maintenance and repair in the event of equipment failure”, Explain.
It should be noted that the new labor regulations in reference to teleworking and remote work contained in Law 21,220, contemplate a very important element to take into account, it is the right to disconnection that the worker will have in his day to day. The rule establishes that in a period of 24 hours there must be a minimum of 12 hours where the worker will have the right to be disconnected from their work.
“In this sense, the Labor Directorate in its ruling No. 258/003, established that the right to disconnection not only reaches people with a defined working day, it also applies to people who do not have a defined working day, therefore, the condition of having or not having a schedule is not decisive when it comes to the right to disconnect”Jara argues.
Occupational accidents at home
Another very important point is what happens if a worker suffers an accident at home, in this case it is relevant to distinguish the types of accidents in order to determine if the mishap was due to work or not.
“We must be clear that domestic accidents are those that occur in the home while performing household chores. This means that, if the person had an accident, for example, cooking, cleaning the house, going out to buy at the supermarket or others, they would not have coverage for Work Accident Insurance. Therefore, to access Work Accident insurance coverage, this must be, by definition, that it occurs on the occasion of work”adds Daniela Jara.
Finally, it must be taken into account that the employer has the duty to inform people who are teleworking about the risks inherent in their job, and adopt the security measures corresponding to their position and position in the new modality. of telecommuting.