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Regulating Telework in a Post-COVID-19 Europe Regulating telework in a post-COVID-19 Europe European Agency for Safety and Health at Work ISSN: 1831-9351 Regulating telework in a post-COVID-19 Europe 1 European Agency for Safety and Health at Work — EU-OSHA Regulating telework in a post-COVID-19 Europe Authors: Pablo Sanz de Miguel, Maria Caprile and Juan Arasanz (NOTUS). This report was commissioned by the European Agency for Safety and Health at Work (EU-OSHA). Its contents, including any opinions and/or conclusions expressed, are those of the authors alone and do not necessarily reflect the views of EU-OSHA. Project management: Maurizio Curtarelli and Lorenzo Munar (EU-OSHA). Europe Direct is a service to help you find answers to your questions about the European Union Freephone number (*): 00 800 6 7 8 9 10 11 (*) Certain mobile telephone operators do not allow access to 00 800 numbers, or these calls may be billed. More information on the European Union is available on the internet (http://europa.eu). Cataloguing data can be found on the cover of this publication. Luxembourg: Publications Office of the European Union, 2021 ISBN: 978-92-9479-541-0 doi:10.2802/125499 © European Agency for Safety and Health at Work, 2021 Reproduction is authorised provided the source is acknowledged. 2 European Agency for Safety and Health at Work — EU-OSHA Regulating telework in a post-COVID-19 Europe Table of Contents 1 Introduction .................................................................................................................................. 4 2 EU regulation pre-COVID-19 ....................................................................................................... 4 3 National regulation pre-COVID-19 ............................................................................................... 6 3.1 Countries with statutory definitions of and specific legislation on telework ................................. 7 3.1.1 Statutory definition ............................................................................................................ 7 3.1.2 Main issues addressed in statutory legislation ................................................................. 8 3.1.3 Collective bargaining regulation...................................................................................... 13 3.2 Countries without statutory definitions of and specific legislation on telework .......................... 14 3.2.1 Statutory provisions addressing matters related to telework .......................................... 14 3.2.2 Collective bargaining regulation...................................................................................... 15 4 Changes in national regulation and debates in the post-COVID-19 scenario ........................... 16 4.1 Temporary measures and initiatives .......................................................................................... 16 4.2 Legal changes, initiatives and debates...................................................................................... 17 5 Concluding remarks ................................................................................................................... 24 6 References ................................................................................................................................ 26 3 European Agency for Safety and Health at Work — EU-OSHA Regulating telework in a post-COVID-19 Europe 1 Introduction The unprecedented extension of telework as a result of the outbreak of COVID-19 gives rise to questions about the impact of this form of work organisation in the longer term, particularly because there are many reasons to believe that it will accelerate pre-existing trends towards the digitalisation of work and the increasing flexibility of work arrangements. Many employers have had a large proportion of their employees working from home since March 2020. Both employers and employees with no previous experience of telework have faced the advantages and drawbacks of this work arrangement. As time goes on, it is likely that telework and more flexible work organisation arrangements will become a more prominent and permanent feature for employers and employees. While literature outlines the potential benefits of telework for both organisations and individuals in terms of flexibility, autonomy, performance and work-life balance, studies also point out potential drawbacks. Telework has traditionally been associated with psychosocial risks, mainly related to the pervasiveness of information and communications technology (ICT) (extended availability and increased workload), blurring boundaries between work and private life (work-life conflict) and isolation. Telework also entails higher ergonomic risks because working outside the employer’s premises increases the complexity of risk assessment and the enforcement of occupational safety and health (OSH) standards by either the company or workers’ representatives. The increased prevalence of telework as a consequence of the COVID-19 pandemic has led to increasing interest regarding this form of work organisation and its impact on the well-being and health of employees. For this reason, in autumn 2020 the European Agency for Safety and Health at Work (EU-OSHA) conducted a consultation with its national focal points (FOPs) network through an online survey about existing legislation applicable to telework in a national context, and any legal changes, initiatives and debates resulting from the COVID-19 pandemic. This report presents an analysis on how telework is regulated in Europe, based on this consultation and an additional literature review, including a review of the International Labour Organisation’s (ILO’s) national legislation database. The report starts with an introductory overview of EU regulation pre- COVID-19, followed by an analysis of national regulation pre-COVID-19. The next chapter provides an account of changes in legislation, other initiatives and policy debates post COVID-19. The report ends with some concluding remarks. 2 Regulation of telework in the EU pre-COVID-19 Telework is not regulated at EU level through hard-law mechanisms. No specific directives focus on telework, although several directives and regulations address issues that are important for ensuring good working conditions for teleworkers. For instance, the EU Working Time Directive (Directive 2003/88)1 includes provisions aimed at protecting the safety and health of workers (maximum of 48 working hours per week, etc.), including those performing telework. In addition, the Framework Directive on Safety and Health at Work (Council Directive 89/391/EEC)2, which aims to encourage improvements in the safety and health of workers in the workplace, does not specify the work location when it comes to the application of its provisions and, accordingly, also applies to teleworkers. More recently, the Transparent and Predictable Working Conditions Directive (Directive (EU) 2019/1152)3 has indirectly 1 Directive 2003/88/EC of the European Parliament and the Council of the European Union of 4 November 2003 concerning certain aspects of the organisation of working time (OJ L 299, 18.11.2003). 2 Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ L 183, 29.6.1989). 3 Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union (OJ L 186, 11.7.2019). 4 European Agency for Safety and Health at Work — EU-OSHA Regulating telework in a post-COVID-19 Europe addressed some of the challenges associated with the protection of teleworkers. This directive requires that provisions be made in relation to the place of work and that work patterns be clarified in the employment contract. This ensures more predictable working time patterns for workers, which could have a positive impact on work-life balance. In addition, it is also worth mentioning the Work-Life Balance Directive (Directive (EU) 2019/1158) 4 , which includes telework as one of the flexible working arrangements to which working parents and carers are entitled. However, this directive does not deal with the potentially negative impact of telework (Eurofound, 2020a). Attention should also be drawn to the General Data Protection Regulation (Regulation (EU) 2016/679)5, replacing Directive 95/46/EC, which regulates the collection, use and transfer of personal data, and also establishes provisions related to data-processing operations, including employee monitoring. In this sense, this regulation requires that employees’ consent be given prior to the introduction of any employee monitoring system (Eurofound, 2020b). Finally, it is worth mentioning a recent legislative initiative from the European Parliament (January 2021)6, which calls on the Commission to propose a law aimed at recognising the right to disconnect. This law should also establish minimum requirements for remote working and clarify working conditions, hours and rest periods. The legislative initiative was passed with 472 votes in favour, 126 against and 83 abstentions. The main EU regulation addressing telework was introduced through the EU Framework Agreement on Telework (2002)7 This is an autonomous agreement between the European social partners (ETUC, UNICE, UEAPME and CEEP) that commits the affiliated national organisations to implementing the agreement according to the ‘procedures and practices’ specific to each Member State. This method
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