As a consequence of the state of emergency declared in the country due to the Covid-19 pandemic, on March 18, 2020 the Ministry of Labor issued Resolution No. 07/2020, by which employers were urged to take various measures that allow physical distancing, including, among them, the adoption of remote work. From that moment on, companies in need to continue with their operations, availed themselves of this type of work, and were required to establish policies or sign agreements that reflected the rights and obligations of the parties.
It is for this reason that on November 12, 2020, the Ministry of Labor issued Resolution No. 23/2020 on the Regulation of Teleworking as a special modality of work within the framework of the Constitution, Agreements of the International Labor Organization of which the country is a signatory, the Labor Code, the Law that creates the Dominican Social Security System, Regulation 522-06 on Safety and Health at Work, among other regulations.
This way the country began the development of teleworking as a special work modality that allows to promote the generation of jobs, increase the productivity and competitiveness of companies and contribute to the inclusion of productive sectors in the digital economy and use of technological and communication tools.
This Resolution introduces for the first time the following concepts and definitions in labor regulations.
Telework, as a special type of work that is provided remotely, either partially or totally, making use of tools related to information and communication technologies. Teleworker, person who, under a subordinate relationship, provides his services to the employer for the development of work activities, through the use of technological tools and digital media in an establishment other than the usual premises of the employer.
Digital disconnection, right that assists the worker not to answer requests and / or messages outside of their normal working day.
Reversibility, right that assists both parties, to request the change of modality from teleworking to face-to-face, at the employer’s facilities; in those relationships that have been initiated in person.
Pursuant to the aforementioned Resolution, teleworking is voluntary, and its formalization requires the mandatory signing of an agreement between the parties or the written modification of the existing one. Below are certain provisions that the Teleworking contract must contain.
– Place or places where the work will be developed.
– Breaks that will correspond to the Teleworker. – Organizational unit or department to which the Teleworker will be assigned and reported within the company.
– Contact details of the supervisor, to whom you can contact if information is required.
– The supervisory system or mechanism that will be paid for and used by the employer to verify compliance with the working day, always respecting the privacy of the Teleworker.
– Establish whether the employer will verify the conditions of the workplace, at the beginning or during the execution of the contract.
– List the tools provided by the employer for the provision of the service, if applicable, and the conditions in which they are found. Responsibility for additional costs, if any. – Possibility of a few days of face-to-face work at the company’s facilities, to avoid computer fatigue and promote interaction with other co-workers.
– Conditions to establish the reversibility of the telework modality to face-to-face and vice versa.
The Resolution provides that these agreements must be communicated to the General Directorate of Labor, which will keep a record for these purposes.
In the teleworking agreement, the parties can make the working day more flexible subject to the respect of the minimum standards established in the Labor Code for both the working day and for breaks, the latter must be clearly defined in the teleworking agreement.
During the shift, the Teleworker must be available for the employer’s requirements; once it is concluded, you are entitled to exercise your right to digital disconnection.
Time control mechanisms. The employer can install computer controls of the hours of provision of the Teleworker service in the tools provided, which must have mechanisms that allow monitoring of overtime and night shift work, so that the employer makes the corresponding payment. The employer may not require that said control mechanisms be installed in the electronic devices owned by Teleworkers, which may not be used for the provision of the service unless otherwise agreed by the parties and with due compensation
Tools and equipment. The employer must assume (a) the responsibility of providing the Teleworker with the equipment, tools, materials and training necessary to carry out the contracted work; and, (b) the operating, running, maintenance and repair costs of the equipment and tools supplied to the Teleworker.
For his part, the Teleworker must guard the equipment and materials provided by the employer; as well as using them exclusively in work activities.
In the event that the Teleworker uses their own resources and equipment, the parties may agree to compensation according to the inputs provided.
Security and health at work.
The places agreed by the parties for the execution of services under the teleworking modality must comply with the hygiene and safety conditions established by the regulations in force, each of the parties assuming the obligations imposed by such regulations.
The Industrial Hygiene and Safety Directorate of the Ministry of Labor must ensure compliance with these provisions either through the publication of material that provides the necessary knowledge to the parties. In the case of the employer, the latter must inform the Teleworkers of the requirements, conditions necessary for the provision of the service, the specific risks of their work and the preventive measures in terms of safety and hygiene in accordance with current regulations; the Teleworker being obliged to abide by them
In accordance with the attributions conferred by current legislation, the Ministry of Labor may make visits to the place where teleworking is carried out, after consensus with the Teleworker – having obtained his authorization – respecting at all times the privacy of his residence and guaranteeing his privacy.
Social Security. Activities under the modality of teleworking are subject to the provisions of the Labor Code, Law No. 87-01 that creates the Dominican Social Security System and any other applicable legal provisions.
Teleworkers enjoy the same rights and obligations as face-to-face workers.
In this sense, the employer must guarantee that Teleworkers (a) maintain the same level of training as face-to-face workers; (b) performance evaluation policies may not be discriminatory compared to those of face-to-face workers; (c) will enjoy the fundamental right to privacy and protection of their data in accordance with current regulations.
In addition, the Resolution provides that Teleworkers will enjoy the same union and collective rights provided by the Labor Code, under the same conditions as face-to-face workers. When circumstances permit, the employer will provide opportunities for Teleworkers to interact with their co-workers to interact with them.
Right to privacy. When Telework is carried out in the Teleworker’s residence, video surveillance controls of the provision of the service may not be installed, either by installing cameras and / or using the camera of any electronic device that has been provided as a work tool, except when the Teleworker must attend meetings scheduled by videoconference mechanism and / or must carry out any activity that includes the use of cameras. If Telework is carried out in public places authorized to telework that are paid by the employer for the use of their Teleworkers, such as shared work spaces, video surveillance systems may be installed
Right to Digital Disconnection. To respect and guarantee the full enjoyment of breaks, permits, vacations and balance of work and family life of Teleworkers, outside the working hours agreed in the contract, the Teleworker will have the right to digital disconnection, except in emergency cases of the employer in relation to the agreed service. Employers are encouraged to create digital disconnection policies that encompass all their workers, including senior executives, to support the reasonable use of technological work tools that avoid IT fatigue for hired personnel. Entry into force. Resolution No. 23/2020 entered into force thirty (30) calendar days from its publication in computer media.