The new law to guarantee the right to disconnect for teleworkers

The right to digital disconnection is a right that has gradually been regulated and recognized internationally, with greater force from the intensive use of teleworking promoted during the COVID-19 pandemic. Therefore, law 10168 of March 30, 2022, recently approved, must be placed in the context of this global trend.

Digital disconnection entails, among other aspects, the worker's right not to connect or communicate with his employer through any digital device or software associated with work during his rest periods, vacations, or outside of the working day.

The text of the approved law amends subsection d) of Article 9 of Law 9738, Law to Regulate Telework, of September 18, 2019, which regulates the obligations of teleworkers. Therefore, it only has an impact on this work modality.

Although the right to disconnection is introduced for this specific form of work, it is also a right that is implicitly and partially enjoyed by the rest of the collaborators who do not telecommute. Requesting any worker to use their rest time to attend to tasks related to their employment contract has always given rise to overtime claims and the economic surcharge that this causes; the preceding should discourage this practice and reserve it for qualified and extraordinary situations.

Despite the above, and for the specific case of teleworkers, the legal text introduces a modification of great importance by indicating that "the teleworker will have the right to digital disconnection outside of the established working day or schedule unless it is unforeseen and urgent situations, in which their consent must be counted on".

To date, it has been recognized that the worker's obligation to work overtime derives from the collaborator's duty of subordination, the employer's power of direction, and the exceptional nature of the cause that gives rise to the request for additional work. It was a requirement that could be formulated during the working day or once it had concluded, and in no case was the express or implicit consent of the worker required for the obligation to originate.

Therefore, in these cases, the company only had to demonstrate why the worker was required to exceed his normal working day. Then a discussion could take place at the administrative or judicial level due to disciplinary sanctions received by the worker due to contempt or refusal to work overtime.

The legality of the disciplinary sanctions imposed depended on the same reasons that supported the request for overtime work and, like the recently approved legal text recalls, is reduced to considering whether the work is unforeseeable, urgent, cannot be postponed, and also – we add – exceptional.

As of the approved reform, even if it is shown that these conditions are present, the law also requires the consent of the teleworker.

Regarding this new provision, it should be remembered that under the previous rule, the worker could be exempted from working overtime for the company if said work caused him severe damage. However, if there was serious damage, the worker had to notify the employer immediately or in the shortest possible time and demonstrate why he was exempted from working overtime. If he complied with this requirement, he could not be sanctioned for his absence.

With the reform, the decision of the teleworker is not conditioned by any criterion of reasonableness. This is a radical change that can lead to legal conflicts in which it will be up to the courts to determine if an exercise of weighing the rights at stake is carried out: those of the employer, by demanding that overtime be worked for urgent and unforeseeable reasons, and those of the worker, to rest and disconnect after the end of their ordinary day. Nor could it be ruled out that the previous conduct of the parties in conflict in the fulfillment of their legal obligations regarding the working day and rest periods may have a relative weight in these judicial decisions.

At Bufete Godínez y Asociados, we specialize in counseling and advising employers in labor and employment law. If you need any additional information, do not hesitate to contact us by clicking here.


About the Autor

Alejandro Godínez Tobón

Alexander Godínez Vargas

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