Published 24 April 2020, The Daily Tribune

With the coronavirus outbreak and the implementation of the enhanced community quarantine, many companies have been constrained to adopt telecommuting or work from home arrangements to maintain productivity and/or keep their businesses afloat. But even before the coronavirus crisis, a growing number of businesses has been embracing telecommuting because of its benefits for both employers and employees. This article seeks to outline the legal issues that should be considered in relation to telecommuting/working from home.

The main piece of legislation covering telecommuting is the Telecommuting Act of 2018 (Republic Act 11165). As used in the law, the term telecommuting “refers to a work from an alternative workplace with the use of telecommunications and/or computer technologies.” While telecommuting is often equated with work from home, alternative workplace also includes other locations such as coffee shops and co-working spaces.

The law essentially recognizes telecommuting as an alternative work arrangement for employees in the private sector. Employers are authorized to offer a telecommuting program to the employees on a voluntary basis upon such terms and conditions as they may mutually agree on. It must be stressed, however, that the terms and conditions of the said program shall not be less than the minimum labor standards set by law and shall include compensable work hours, minimum number of work hours, overtime, rest days, entitlement to leave benefits, social welfare benefits, and security of tenure.

In all cases, the employer shall provide the employee with relevant written information in order to adequately apprise the employee of the terms and conditions of the telecommuting program, including the duration of the program, rights, duties, and responsibilities of the employee.

Relatedly, according to the Implementing Rules and Regulations (IRR) of the Telecommuting Act (Department Order 202 Series of 2019) issued by the Department of Labor and Employment (DOLE), the telecommuting program should be able to address the following: 1.) Eligibility; 2.) Applicable code of conduct and performance evaluation and assessment; 3.) Appropriate alternative workplace/s; 4.) Use and cost of equipment; 5.) Work days and/or hours; 6.) Conditions of employment, compensation, and benefits particularly those unique to telecommuting employees; 7.) Non-diminution of benefits; 8.) Occupational safety and health; 9.) Observance of data privacy policy; 10.) Dispute settlement; and 11.) Termination or change of work arrangement.

Another salient feature in the Telecommuting Act is the mandate of employers to ensure that telecommuting employees are given the same treatment as that of similar employees working at the employer’s premises. All telecommuting employees shall be covered by the same set of applicable rules and existing collective bargaining agreement, if any. They shall also:

a. Receive a rate of pay, including overtime and night shift differential, and other similar monetary benefits not lower than those provided in applicable laws and/or CBA;

b. Have the right to rest days, regular holidays and special nonworking days;

c. Have the same or equivalent workload and performance standards as those of comparable workers at the employer’s premises; provided that the parties may mutually agree to different performance standards that may be more appropriate given the location of the employee is not at the premises of the employer;

d. Have the same access to training and career development opportunities as those of comparable workers at the employer’s premises, and be subject to the same appraisal policies covering these workers;

e. Receive appropriate training on the technical equipment at their disposal, and the characteristics and conditions of telecommuting; and

f. Have the same collective rights as the workers at the employer’s premises, including access to safety and health services when necessary and shall not be barred from communicating with worker’s representatives.

The employer shall also ensure that measures are taken to prevent the employee from being isolated from the rest of the working community in the company. In this regard, the employee must be given the opportunity to meet with colleagues on a regular basis and be allowed access to the regular workplace and company information.

Moreover, the law requires the employer to take appropriate measures to ensure the protection of data used and processed by the employee for professional purposes. The employer shall inform the employee of all relevant laws, including the Data Privacy Act of 2012, and company rules concerning data protection.

It is likely that telecommuting is going to be part of the new norm moving forward. This being said, companies should ensure compliance with the law when implementing a telecommuting program in the workplace. Please note that the employers are required to notify DOLE of the adoption of a telecommuting work arrangement, by accomplishing the prescribed report form and submitting the same to the appropriate DOLE office.

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