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Factsheet for case PT-2020-13/307 Updated – measures in Portugal

Telework - exceptional and temporary measure in the context of the COVID-19 pandemic

Teletrabalho - Medida excecional e temporária no âmbito da pandemia COVID-19

Country Portugal , applies nationwide
Time period Temporary, 22 March 2020 – 31 December 2021
Type Legislations or other statutory regulations
Category Protection of workers, adaptation of workplace
– Teleworking arrangements, remote working
Author Heloisa Perista and Maria da Paz Campos Lima (CESIS) and Eurofound
Case created 06 April 2020 (updated 20 July 2021)

Background information

Decree Law No. 2-A/2020 of 20 March, which proceed with the state of emergency concerning COVID-19 pandemic declared on 18 March 2020, established in article 6 that it is mandatory to adopt the teleworking regime, regardless of the employment relationship, whenever the functions concerned will allow it.

It altered Decree Law No. 10-A/2020 of 13 March, setting the first exceptional and temporary measures concerning COVID-19 pandemic, set new rules concerning teleworking (article 29).

With the Resolution of the Council of Ministers no. 40-A/2020, teleworking is mandatory only when requested by the worker in the following situations, regardless of the employment relationship and whenever the functions allow: specific health conditions of the worker; in specific situations of support to children under 12 years of age; and when workplaces or organisation of work do not ensure safety.

The Resolution of the Council of Ministers no. 51-A/2020 that came into force in July extended the period of validity of these regulations.

The Resolution of the Council of Ministers 55-A/2020 of 31 July, allowed in Article 4 the implementation of turnover between teleworking regime and the work performed in the usual workplace, daily or weekly, with differentiated times for entry and exit or different times for breaks and meals (paragraph 4); under the employer prerogative to change the organization of working time provided for in applicable legislation (paragraph 5).

The Resolution of the Council of Ministers 70-A/2020 established that the provisions of article 4 regulating teleworking and organization of work, provided for in paragraph 4 are mandatory in the Metropolitan Areas of Lisbon and Porto, unless they are manifestly impracticable (paragraph 5).

Decree Decree-Law 79-A/2020, following the Resolution of the Council of Ministers 70-A/2020 of 11 September, accounting for the return of most Portuguese to work and the start of the school year, leading to higher levels of contact and a larger number of social interactions, as well as of people on the move, especially in areas with a higher population density and commuting, establishes rules for risk mitigation applying in workplaces with 50 or more workers in the territorial areas, where the epidemiological situation justifies to be defined by the government (article 2). They refer mainly to the terms and conditions of implementation of staggered clock-in and clock-out times and alternating breaks ( see case PT-2020-40/1273 ), but the decree establishes that in order to reduce contagion, preference is also given to the use of the teleworking regime, whenever the nature of the activity allows it (Article 3, paragraph 2 c).

Content of measure

Decree Law No. 2-A/2020 of 20 March which proceed with the state of emergency concerning COVID-19 pandemic declared on 18 March 2020 established in article 6 that it is mandatory to adopt the teleworking regime, regardless of the employment relationship, whenever the functions concerned allow it.

Previously Decree Law No. 10-A/2020 of 13 March, setting the first exceptional and temporary measures concerning COVID-19 pandemic, set new rules concerning teleworking (article 29) - which do not apply to workers performing essential services - establishing that the regime of telework for dependent workers could be determined unilaterally by the employer or required by the worker, without need for agreement by the parties, provided it is compatible with the functions performed.

With the Resolution of the Council of Ministers no. 40-A/2020 teleworking is mandatory only when requested by the worker in the following situations, regardless of the employment relationship and whenever the functions allow: specific health conditions of the worker; in specific situations of support to children under 12 years of age; and when workplaces or the organisation of work do not ensure safety.

The Resolution of the Council of Ministers no. 51-A/2020 that came into force on 1st July 2020 extended the period of validity of these regulations and mandatory conditions, with the exception of the support to children under 12 years of age, which is no longer a reason to invoke.

Updates

The following updates to this measure have been made after it came into effect.

18 June 2021

The Declaration of Rectification 18-B/2021 of 18 June 2021 amending the Resolution of the Council of Ministers 70-B/2021 established that compulsory teleworking will only apply to municipalities with high risk or very high risk of COVID-19.

30 March 2021

The Decree no. 25-A/2021 of 30 March 2021 prolongs until 31 December 2021 the provisions of Decree 79 -A/2020 of 1 October 2020 concerning compulsory teleworking and staggered clock-in and clock-out times.

14 January 2021

The Decree no. 3-A / 2021 of 14 January 2021 that regulates the 'state of emergency', decreed by the President of the Republic, establishes in Article 5 that is mandatory to adopt the teleworking regime, regardless of the employment relationship, whenever compatible with the activity performed and with the worker conditions to exercise it, without the need for agreement of the parties. Teleworkers have the same rights and duties as other workers, with no reduction in pay, under the terms set out in the Labor Code or in applicable collective agreements, namely with regard to limits on normal working hours and other working conditions, occupational safety and health accidents at work or occupational diseases, while maintaining the right to meal allowances already due. The employer must provide the tools and communication equipment necessary for the provision of teleworking work; when this is not possible and the worker consents to it, teleworking can be carried out through the means that the worker has, with the employer being responsible for the appropriate adaptation.

In the case of temporary agency workers and service providers, user companies or final beneficiary of the services provided are responsible for ensuring compliance with the above mentioned measures, with the necessary adaptations (paragraph 5).

Whenever it is not possible teleworking, regardless of the number of workers, the employer must organize differentiated hours of entry and exit from the workplace.

Decree Law no. 6-A/2021 of 14 January in Article 4 aggravates the legally prescribed penalties related with administrative offense concerning teleworking, setting that during the state of emergency the violation of the provisions of Decree Law no. 3-A / 2021 constitutes a very serious infraction, applying the provisions of articles 548 to 566 of the Labour Code.

03 November 2020

The Decree no. 94-A-2020 of 3 November 2020 adds to the Decree Law no. 79 -A/2020, the Article 5A on the obligation to adopt telework, regardless of the employment relationship, whenever the functions in question allow it and the worker has the conditions to exercise them. For this purpose, the written agreement between the employer and the employee is dispensed with.

The legislation in question also provides for the employer to make available the work and the communication tools and equipment necessary for the provision of work, and when such availability is not possible and the worker consents, it establishes that telework can be carried out through the means that the worker has, and the employer is responsible for the proper programming and adaptation to the needs inherent to the provision of telework (Paragraphs 5 and 6).

On the other hand, when the employee is not able to provide service under a teleworking regime, namely due to the lack of adequate technical or housing conditions, he/she must inform the employer, in writing, of the reasons for his/her impediment (paragraph 7).

The law made it clear that the teleworker has the same rights and duties as other workers, without any possibility of reducing pay, under the terms provided for in the Labour Code or in collective agreements. Due to a set of doubts that were raised during the first generalization of telework in the pandemic context, in March 2020, the Decree-Law expressly states the limits of the normal working period and other working conditions, health and safety at work and the repair of damages arising from an accident at work or occupational disease, while maintaining the right to receive the meal allowance that was already due (paragraph 8).

01 October 2020

Decree-Law 79-A/2020, following the Resolution of the Council of Ministers 70-A/2020 of 11 September, accounting for the return of most Portuguese to work and the start of the school year, leading to higher levels of contact and a larger number of social interactions, as well as of people on the move, especially in areas with a higher population density and commuting, establishes rules for risk mitigation applying in workplaces with 50 or more workers in the territorial areas, where the epidemiological situation justifies to be defined by the government (article 2). They refer mainly to the terms and conditions of implementation of staggered clock-in and clock-out times and alternating breaks ( see case PT-2020-40/1273 ), but the decree establishes also that in order to reduce contagion, preference is also given to the use of the teleworking regime, whenever the nature of the activity allows it (Article 3, paragraph 2 c).

11 September 2020

The Resolution of the Council of Ministers 70-A/2020 established that the provisions of article 4 regulating teleworking and organisation of work, provided for in paragraph 4 are mandatory in the Metropolitan Areas of Lisbon and Porto, unless they are manifestly impracticable (paragraph 5). Paragraph 4 allows the adoption of turnover between teleworking regime and work performed in the usual workplace, daily or weekly, with different times of entry and departure or different times for breaks and meals.

31 July 2020

Resolution of Council of Ministers no. 55 -A/2020 of 31 July allowed in Article 4 the implementation of turnover between teleworking and work performed in the usual workplace, daily or weekly, with differentiated times for entry and exit or different times for breaks and meals (paragraph 4); under the employer prerogative to change the organization of working time (paragraph 5).

29 May 2020

With the Resolution of the Council of Ministers no. 40-A/2020 the teleworking extraordinary regime becomes mandatory only when requested by the worker, regardless of the employment relationship and whenever the functions in question allow and in particular situations: specific health conditions of the worker; in specific situations of support to children under 12 years of age; and when workplaces or work organizations do not offer safety conditions.

The Resolution of the Council of Ministers no. 51-A/2020 that came into force on 1st July 2020 extended the period of validity of these regulations. and mandatory conditions, with the exception of the support to children under 12 years of age, which is no longer a reason to invoke.

Use of measure

With basis on Labour Force Survey ad hoc module ‘Working from home’, Statistics Portugal reported that, in the second quarter of 2020,1,094.4 thousand employed persons declared having worked always or almost always from home (in the reference week or in the three weeks before), which represented a share of 23.1% of the total employed population; and that for 91.2% of these the main reason for having worked at home was the COVID-19 pandemic. Statistics Portugal highlights that 1.04 million people used information and communication technologies to be able to work from home, a share of 21.9% of the total employed population and 94.8% of those who worked always or almost always at home in the reference period.

In the third quarter of 2020, the share of the employed population who has worked remotely decreased to 14.2% of the employed population; and in the fourth quarter of 2020 decreased to 12.3% of the employed population (597,500 people). In both quarters around 79% of the persons that worked from home indicated the main reason was the COVID-19 pandemic.

Target groups

Workers Businesses Citizens
Employees in standard employment
Other groups of workers
Does not apply to businesses Does not apply to citizens

Actors and funding

Actors Funding
National government
Company / Companies
No special funding required

Social partners

Social partners' role in designing the measure and form of involvement:

Trade unions Employers' organisations
Role Consulted Consulted
Form Consultation through tripartite or bipartite social dialogue bodies Consultation through tripartite or bipartite social dialogue bodies

Social partners' role in the implementation, monitoring and assessment phase:

  • Unknown
  • Main level of involvement: Peak or cross-sectoral level

Involvement

Trade union and employer confederations were consulted at the Standing Committee for Social Concertation.

Views and reactions

Employer and trade union confederations were consulted at the tripartite Standing Committee for Social Concertation.

The newly formed (on18 May 2021, National Council of Employers' Confederations (CNCP) including all employer confederations [the Confederation of Farmers of Portugal (CAP), the Confederation of Commerce and Services of Portugal (CCP), the Business Confederation of Portugal (CIP), the Confederation of Tourism of Portugal (CTP) and the Portuguese Confederation of Construction and Real Estate (CPCI)] - opposed the government's decision maintaining compulsory teleworking until 13 June 2021 to all municipalities arguing that this extension “conflicts with other constitutionally protected rights, freedoms and guarantees, such as the development of economic activity, which it presupposes the freedom to determine its mode of organization and functioning” as, it stands out, is in the Constitution. Moreover CNCP stressed that the government ignored its own provisions applying mandatory teleworking only in municipalities considered (...) as being of high, very high and extreme risk in terms of COVID-19 pandemic. Source: Público, 2 June 2021.

Sources

  • 13 March 2020: Decreto-Lei n.º 10-A/2020, Diário da República n.º 52/2020, 1º Suplemento, Série I de 2020-03-1 (dre.pt)
  • 17 March 2020: Conselho Económico e Social - Portugal (www.ces.pt)
  • 18 March 2020: Decreto do Presidente da República n.º 14-A/2020 (data.dre.pt)
  • 20 March 2020: Decreto-Lei n.º 10-G/2020, Diário da República n.º 61/2020 Suplemento, Série I de 2020-03- (dre.pt)
  • 20 March 2020: Decree-law 2-A/2020 (dre.pt)
  • 29 May 2020: Resolução do Conselho de Ministros n.º 40-A/2020 (data.dre.pt)
  • 26 June 2020: Resolução do Conselho de Ministros n.º 51-A/2020 (dre.pt)
  • 31 July 2020: Resolução do Conselho de Ministros n.º 55-A/202 (dre.pt)
  • 05 August 2020: Working from home–Labour Force Survey adhoc module 2ndquarter of202 (ine.pt)
  • 05 August 2020: Statistics Portugal: Working from home due to the pandemic covered one million people - 2nd Quarter 202 (ine.pt)
  • 14 August 2020: Resolução do Conselho de Ministros n.º 63-A/2020
  • 11 September 2020: Resolução do Conselho de Ministros n.º 70-A/2020 (data.dre.pt)
  • 01 October 2020: Decreto-Lei n.º 79-A/2020 (data.dre.pt)
  • 03 November 2020: Decreto-Lei n.º 94-A/2020 (dre.pt)
  • 06 November 2020: Resolução da Assembleia da República n.º 83-A/202 (dre.pt)
  • 06 November 2020: Working from home – Labour Force Survey ad hoc module 3 rd quarter of 202 (www.ine.pt)
  • 14 January 2021: Decreto n.º 3-A/2021 (dre.pt)
  • 14 January 2021: Decreto-Lei n.º 6-A/2021 (dre.pt)
  • 02 February 2021: Portugal: Working life in the COVID-19 pandemic 202 (www.eurofound.europa.eu)
  • 11 February 2021: Working from home–Labour Force Survey adhoc module 4th quarter of 202 (www.ine.pt)

Citation

Eurofound (2020), Telework - exceptional and temporary measure in the context of the COVID-19 pandemic, case PT-2020-13/307 (measures in Portugal), COVID-19 EU PolicyWatch, Dublin, http://eurofound.link/covid19eupolicywatch

Disclaimer: This information has not been subject to the full Eurofound evaluation, editorial and publication process. All information is preliminary and subject to change.