Due to the various measures adopted by governments and employers to control the situation caused by the COVID-19 pandemic, the need to reshape work environments has accelerated. Since 2020, examining expanded policies for the regulation of telework, work-from-home, or remote work has gained great importance in many companies, in order to provide flexibility for the benefit of both people and organizations.

That is why it is necessary to know the new regulations that have derived and the state of legislation on this matter in the different jurisdictions of Latin American regions, where your organization may be facing these new and almost definitive remote work environments.

Below we review the current perspective of the different adoptions taken in some Latin American countries for the regulation of telework in the region and how, with this, your organization can get into context to adapt its work policies.

General telework regulatory framework in LATAM

General telework regulatory framework in Latin America

The boom in telework regulation is recent in Latin America, although the phenomenon itself is not new.

Some countries had already regulated the modality years ago, others had to issue emergency regulations due to the coronavirus, and there are nations that, given the lack of legal mechanisms, limited themselves to promoting agreements between the parties regarding existing legal loopholes.

Although there has been progress in the regulation of telework in Latin America, few countries have specific regulations to guarantee the conditions of remote workers. Colombia is the most advanced country in telework regulation, with clear rules and monitoring and generation of information on its acceptance and use in the country.

Certain nations have specific regulations that allow teleworkers and face-to-face workers to enjoy the same rights in terms of salary, benefits, and working hours; however, it is not an approved situation throughout the region. Labor laws, archaic and long-standing in many Latin American countries, are one of the main barriers that have prevented addressing it.

The most advanced country in regulation: Colombia

This country already has a long journey in the implementation of telework by organizations and, in turn, in the corresponding regulation.

Telework, regulated by Law 1221 of 2008, allows the worker to provide their services from home after meeting certain requirements, establishing standards to promote and regulate it. This regulation defines both the concept of telework and its different forms (autonomous, mobile, and supplementary).

In general terms, the Colombian State promotes its implementation and grants guarantees and protection to teleworkers, where employers must guarantee the conditions so that the teleworker can properly perform their duties.

Additionally, with the figure of «work from home» recently created by the Ministry of Labor through Circular 021 of 2020, labor protection measures are established due to the containment phase against the COVID-19 pandemic.

With «work from home», the possibility is contemplated for the person to work from home, with all the benefits and legal tools so they can perform their tasks as if they were in the office, considering it an exceptional form of work of temporary duration under special circumstances.

One of the first to promote telework: Peru

Peru was one of the first countries in Latin America to promote telework as a presidential policy, in order to comply with total isolation measures against the COVID-19 pandemic.

Through Urgent Decree No. 026-2020 of March 2020, employers were given the possibility of applying remote work, understood as «the provision of subordinate services with the physical presence of the worker at their home or place of isolation, using any means or mechanism that makes it possible to perform tasks outside the workplace, provided that the nature of the work allows it».

In turn, by May 2021 the Congress of the Republic approved the new telework law for the public and private sectors, based on Bill 5408/2020-CR. This proposes the «Telework Law», now approaching the figure with enough flexibility to adapt to the current circumstances arising from the pandemic.

This regulation establishes that telework can be carried out in various ways: temporarily or permanently; totally or partially, within the national territory or outside it; likewise, in the place agreed upon by the parties, provided that the teleworker has the necessary technological, computer, and communication tools.

Telework in other regions

What else we see in the rest of the regions

In Argentina, although they do not have a legal instrument drafted specifically for telework, they do have a set of laws that cover its activity and promotion, where it is allowed for the same rights to exist between remote and face-to-face workers. Among them, the Employment Contract Law and the ratification of Convention No. 177 of the International Labour Organization (ILO) on home work.

Bolivia, Chile, and Guatemala do not have detailed regulations for the use of telework, where this modality operates under general rules in these countries and where, as a result of the COVID-19 contingency, discussions are accelerating for the application of regulatory standards in this regard.

Meanwhile, Uruguay is working on the design of a special bill on the matter together with the National Directorate of the National Emergency System (Sinae), establishing guidelines to promote telework; so far it is only applied in public offices, as a transitional, exceptional, and preventive measure.

For Mexico, in its legal framework there was no mention of telework as such, but there was talk of home work, declaring it equal to the face-to-face relationship, where the same rights and obligations are enjoyed. Although there was a limbo around the regulation of telework, with the situation of the COVID-19 pandemic, the conditions were given to promote the discussion of a new bill for its regulation, which is why in January 2021 a reform on telework was published in the «Federal Labor Law», being the first regulation of this labor modality in the history of the country.

And what do we see around Brazil?

In Brazil, on the other hand, telework was included in the Labor Law in 2017 through Law No. 13,467/2017, through one of the many modifications made to a norm dating back to 1943. In general terms, this text «dispenses with the control of the working day and, consequently, the payment of overtime» to employees who work from home. By March 2020, and with the arrival of the pandemic in the country, the federal government enabled employers to change the face-to-face regime for telework as a way to face the state of public calamity; currently, telework in the country is regulated and used on a large scale.

With more than 30 countries in Latin America and the Caribbean, each region with diverse regulatory considerations that have been slowly modernizing and adopting new work modalities, the arrival of the COVID-19 pandemic has served as a driving factor for the discussions and revisions of these regulations, advancing little by little in the implementation of telework as a scheme with all the legal considerations to be a beneficial modality for both employers and workers, today being a successful modality, properly applied and regulated in many Latin American countries.

At Nukke, we accompany you with advice and specialized mechanisms to help you address these regulatory considerations, and to optimally apply them in your productivity schemes under the telework modality in your organization; contact us and discover how.