COVID-19: Teleworking Becomes a Necessity not just an Employee Benefit

Author: Ann Bugeja

Due to the present circumstances, many employers have had to put into action contingency plans with regards to remote working in order to abide by the public health department’s instructions to safeguard the health of their employees.

The Maltese government has issued a scheme to assist employers who have invested in technology to provide a teleworking arrangement for their employees to be able to carry out their work from home. This scheme is open to all undertakings irrespective of size and sector which have employees who did not have an active teleworking agreement prior to 15th February 2020 and who are engaged in a role which may be carried out via telework.

An employer may benefit from a cash grant of up to €500 per teleworking agreement, limited to a maximum of €4000 per undertaking, which will be awarded against 45% of the eligible cost. The costs must be incurred between 15th February 2020 and 8th May 2020.

What are the employment law formalities which must be in place for a teleworking arrangement?

Maltese law stipulates that in cases where there is no specific reference to teleworking within the employment contract and telework is undertaken during the course of the employment relationship, an agreement regulating the terms and conditions of teleworking must be entered into.

If an employer makes an offer of telework during the course of the employment relationship, the employee is free to accept or refuse. Refusal of an offer to telework does not constitute good and sufficient cause for termination of  employment. Similarly, if an employee asks to opt for teleworking, the employer may equally accept or refuse such a request.

Where both the employer and employee agree to enter into a teleworking arrangement, each party is granted the right to terminate the teleworking agreement by giving notice following which the employee will revert to the pre-teleworking post.

A teleworking agreement must be in writing and must include

• the location where telework is to be carried out;
• provisions related to the ownership, maintenance, liability and costs of the equipment used;
• the time to be spent working from home and the time to be spent at the employer’s premises;
• the schedule according to which the employee will perform telework where applicable, the description of the work to be performed;
• the description of the work to be carried out;
• the department to which the teleworker is attached, the teleworker’s superiors and reporting arrangements;
• provisions relating to monitoring if applicable;
• notice of termination of the teleworking agreement; and
• a reference to the right of reversibility by either party including the right of the teleworker to return to his pre-telework post.

The employer is responsible for providing, installing and maintaining the equipment necessary at all times in order for the employee to be able to perform the job duties required. In turn, it is the employee’s duty to care for the equipment provided by the employer and costs for loss of or damage to such equipment  shall be borne by the employee if and when they arise through the employee’s negligence. The employer is also responsible to cover the costs relating to communication which arise as a direct result of the teleworking.

An employer must ensure that there are policies in place which safeguard data security and inform employees of any restrictions on the use of the IT equipment provided by the employer, such as for example that the equipment may not be used for personal use.

As an employer how can I ensure that employees are doing the work assigned to them?

As is the case in the workplace, employees have a reasonable expectation to privacy even when working from home.  The implementation of monitoring systems naturally involves the processing of personal data, and therefore caution is to be exercised. Monitoring may only take place if it is truly necessary and should be carried out in a manner that is proportionate and transparent. Employers may only put in place a monitoring system if this is specifically mentioned in the teleworking agreement and the monitoring system is proportionate to the regulations on the safety and health requirements for work with display screen equipment. Certain monitoring technologies, such as the installation of software to record keystrokes and mouse movements, are likely to be considered invasive and disproportionate.

There are ways for an employer to ensure that employees are doing their work whilst respecting an employee’s right to privacy, and these would include the implementation of a system which tracks the time spent by employees. Alternatively, one may as the employees to report to their superiors with updates on the progression of work on a daily or weekly basis.

The above is not to be construed as legal advice and only sets out our general views which may change when assessing specific circumstances.