#CostaRica 🇨🇷 #ArticlesBDS: Telework. What Should Employers Provide?

Before this, there were decrees and guidelines for the implementation of telework in the public sector; private employers, however, were not subject to any binding standards whatsoever. Every employer used to make a decision on whether telework was to be allowed in its organization, the frequency thereof, and under which rules and conditions. Upon the enactment of the Law, clearer guidelines have been established, while the Covid-19 pandemic at early 2020 sped up to a larger extent the adoption of this modality.

One of the most common doubts in terms of labor matters consists in which specific work tools should employers provide their employees when working from home? Should they cover any expenses? These are questions that we will answer further below.

The following analysis is based on the fact that according to article 2 of the Law, telework is voluntary for both parties, which is why the employer cannot force the employee to telework nor may the employee demand it as a labor right, unless telework has been agreed upon between the parties as an essential and intrinsic condition of the employment relationship when entering into the employment contract.

As for the work tools, the Law assumes that the employer is required to provide any tools and supplies as may be necessary to perform the job duties. This obligation has been established in Article 69 of the Labor Code. Also, the Law provides for the obligation to ensure maintenance of all necessary equipment and software, and the obligation to pay salary when the employee is unable to render his/her services as a result of the unavailability of the necessary tools to do so.

Therefore, employers may determine what kind of tools and equipment are required by their employees to telework before deciding whether they can accept the implementation of this work modality in their organizations.

In addition, the Law sets forth that employees may use equipment of their own, e.g. computers, screens, phones, and the like, if agreed upon with their employers. However, employees would have to allow their employer to exercise their monitoring and oversight powers, including any equipment inspections, to ensure the security and confidentiality of employer’s information.

As for the payment of electrical power bills, the Law chose a wording that has led to confusion. Article 8 sets forth that employers must provide and guarantee “the value of energy determined according to a possible mediation agreed upon between the parties”. The Regulation to the Law Regulating Telework published in December 2020, failed to provide any further clarification.

Therefore, and given the Law’s vagueness and the relatively small amount that is often accounted for as “the value of energy”, many employers have opted not to recognize it, or have agreed with their employees that such “cost” is offset by the savings in time, fuel or public transportation costs by the relevant employee by not having to commute to the work place. These options, although appealing, are not risk-exempt, but to date any claims arising therefrom have been uncommon.

As for this particular topic, and taking into consideration the recent nature of these regulations, there is no relevant jurisprudence yet. On the other hand, during September 2020, the Office of Legal Affairs of the Ministry of Labor and Social Security issued opinion DAJ-AER-OFP-285-2020 in which said office ratified that employers are required to recognize the cost of energy to their teleworking employees, but mistakenly indicated that said payment has a salary nature.

This position that the payment or reimbursement for power costs should be considered salary is wrong. The opinion itself refers to Article 69(d) of the Labor Code which refers to the employer’s obligation to provide “any necessary tools, instruments and materials as necessary to perform the agreed upon job duties;” that is, any work tools that should not be considered of a salary nature according to the jurisprudence of the Labor Chamber of the Supreme Court of Justice.

 

Based on this, and even though the employer is required to recognize “the energy value,” there are no clear regulations as to how these amounts should be calculated or their nature. Consequently, it is important that employers make sure that they have the documentation required by the Law before implementing the telework modality in their organizations, as well as any internal policies and contracts regulating any aspects in connection with the way telework will be carried out, the inputs that employers will provide as well as the main obligations for both parties.