Portugal’s new law on working from home makes the country of the European Union like a workers’ paradise.
Companies may not attempt to contact their employees outside working hours. They should help the employees in paying their domestic gas, electricity and internet bills. Owners are prohibited from using digital software to track what their teleworkers are doing.
There’s just one problem: the law might not work. Critics say the new rules are half-baked, brief in details and unforgivable. And they may make companies reluctant to allow work from home.
In many places around the world, the COVID-19 pandemic accelerated the trend towards digitization of work and more flexible work arrangements. Amid such sudden and massive changes in the employment landscape, governments are scrambling to accommodate work from home in their employment laws. Those efforts are largely still in their infancy.
Many Europeans stopped attending office regularly in March 2020 to help stop the spread of COVID-19.
In Europe, unlike the United States, worker protections are widely regarded as entitlements. For example, laying off a staff member can provide substantial severance pay.
Without a promised European Commission directive on how to legally prepare for the change to more widespread work-from-home, governments’ legislative responses have been patchy and piecemeal.
Some countries have recommended teleworking during the pandemic. Others – such as Portugal – have demanded it. Most EU countries have specific laws on telecommunications, albeit with different perspectives, and others are considering it through amendments, extensions or conventions.
As housework has increased in recent years, workers’ right to disconnect – allowing employees to ignore work matters outside of formal working hours – in countries such as Germany, France, Italy, Spain and Belgium was adopted before the pandemic. It is now becoming the standard.
But Portugal is burdening companies.
“The employer has a duty to refrain from contact with the employee outside working hours, except in a force majeure situation,” the new law says, meaning an unforeseen or uncontrollable event.
Also, parents or caregivers of children up to 8 years of age have the right to work from home, if they choose, as long as the type of work they do is compatible with teleworking.
Fines for companies that break the law go up to around 10,000 euros ($11,200) for each violation.
The Portuguese rules are meant to address the downside known as WFH.
The technology that enables work from home has also opened doors for abuse, such as ending work days as employees remain accessible outside of their normal eight-hour shift. Consequences can include a sense of separation and separation between work and personal life.
But the new law has drawn suspicion from those it is intended to protect.
37-year-old Andrea Sampaio works in communications in Lisbon, the capital of Portugal. She agrees with the purpose of the law but thinks it is too general and would be too difficult to enforce.
“We must have common sense,” she said, not mind contacting her for hours if it’s an urgent matter. “We have to judge each case on its merits.”
Inspired by the pandemic but designed to be implemented in the post-pandemic future, the law could come into force on December 1.
It is largely the brainchild of the centre-left Socialist Party, which has ruled Portugal since 2015. Ahead of the election of a new government on January 30, it is eager to burnish its progressive credentials and hoist a banner about workers’ rights.
Still, practical questions abound: Should employees be removed from company email lists when their shifts end and put back when they resume work? What about Europeans who work in financial markets and need to know what is happening in Hong Kong, and their colleagues operating in different time zones?
What if an industrial machine that cannot be shut down requires the attention of a shutdown engineer? Who is it that cannot be contacted by the employee – the department supervisor? Company CEO? What is a contact – a phone call, a text message, an email?
“The devil is always in the details … but also in the implementation,” said John Messenger, an expert on working conditions at the International Labor Organization, a United Nations agency based in Geneva.
The Portuguese Trade Confederation, the country’s largest group of companies, was not involved in drafting the new law and thinks it is full of holes.
Telecommunications regulations need to be flexible, tailored to each region and negotiated between employers and employees, says Luis Henrique of the Confederation’s Legal Department.
“We’re treating conditions that are completely different as if they were all the same. That’s not realistic,” Heinrich said. “(Law) cannot be one-size-fits-all.”
Implementing and implementing new rules in one of the EU’s economically poorest countries can also be challenging. In Portugal, which is notorious for red tape and slow justice and poorly resourced public services, how long will it take to resolve a complaint?
The number of labor inspections across Europe has declined over the past decade, according to data analyzed by the Brussels-based European Trade Union Confederation, which represents 45 million members in 39 European countries.
The country with the biggest drop in the number of inspections since 2010? Portugal, with 55% fewer checks as of 2018.
“Ambitious, progressive laws … run against the reality that methods to police them have not yet been implemented,” said Henrique of the Portuguese Confederation of Trade.