Remote Work Update in Latin America: Latest Developments

Remote work regulations are the new reality companies are learning to navigate in recent years. This learning process is not over yet. Throughout the world, countries are still trying to adjust their employment regulations to the social and employment developments that resulted from the COVID-19 pandemic.

Latin America is not an exception to this trend. While there were already some countries in the region that had remote work rules before the COVID-19 pandemic, most of these regulations were rigid and onerous, requiring adjustments to allow employers to rapidly adapt to these new circumstances. This is the case for Brazil, Colombia, and Peru, among others, which implemented (some temporarily, others permanently) new remote work measures and regulations. In other countries where no remote regulations existed pre-pandemic (e.g., Chile), new remote work regulations were enacted in a short period of time.

The speed with which these laws were issued and the particular circumstances of the pandemic required countries to continue adjusting and regulating remote work.

Below are some of the latest legal updates and developments on remote work that have been passed or are pending in key countries in Latin America in the next quarter (Q2-2022).

Brazil

Brazil’s law on remote work and telework has been subject to continuous extraordinary regulatory measures to promote flexibility as a result of the COVID-19 pandemic.

The most recent legal regulations are Provisional Measure No. 1,108 and Provisional Measure No. 1,109, both enacted on March 25, 2022, through which the Brazilian government modified provisions of Brazil’s employment code related to remote work. These regulations came into force immediately and will be effective temporarily for 120 days (until July 25, 2022), unless the Brazilian congress ratifies the regulations permanently.

The key updates are:

Clarifies the definition of “remote work,” which is defined as the rendering of services outside the employer's premises (regardless of whether the work is predominantly performed outside the employer's premises or not, which was the prior telework requirement), and subject to the use of technological communications.
Clarifies that if employees with remote work contracts have to go to the office because their functions require them to so do (even on a regular basis), they will still be considered remote work employees.
Modifies working time requirements for employees. Previously, all remote work employees were excluded from working time requirements and overtime pay. Now, only employees who are engaged on a task or production-basis are excluded from working time requirements and overtime. Employees hired per work day are subject to working time requirements and are entitled to the payment of overtime.
Provides that the use of technological work tools (e.g., computer, mobile phone, internet applications) outside the regular work day does not constitute on-call time, unless agreed otherwise in the employment contract or applicable collective bargaining agreement.
Provides that the local rules and collective bargaining agreements that apply to employees working in the office also apply to employees working remotely, irrespective of where they are physically located.
Extends the application of the Brazilian remote work law to employees engaged in Brazil but who work in remotely outside Brazil (unless agreed otherwise).
Reiterates the need to expressly agree on remote work in the employment contract, and empowers the parties to agree on the hours and means of communication.
Exempts employers from the payment of expenses incurred by remote employees when returning to the company premises after working in a location other than the one foreseen in the employment contract.
Provides for the obligation to prioritize employees with disabilities or children four years old or younger when determining who may fill a remote work vacancy.

Colombia

There are three modalities of distance work in Colombia:

Telework, created by Law 1221 of 2008, and regulated by Decree 884 of 2012. This modality allows employees to provide services outside the regular workplace using information and communication technologies as support. Under this framework, employees must work remotely at least two days per week.

Work at home, a modality conceived and regulated by Law 2088 of 2021 as a consequence of the COVID-19 pandemic. Due to exceptional, occasional, or special circumstances, it enables employees to temporarily perform their work functions outside the usual place of work by making use of information and telecommunication technologies.

Remote work, also conceived as a result of the COVID-19 pandemic through Law 2121 of 2021, allows the parties to agree on 100% remote work. This framework requires exclusive communication through information technologies, including execution of the employment contract.

Recently, the Colombian Ministry of Labor issued Decree 555 of April 9, 2022, regulating the remote work law (Law 2121 of 2021) and Decree 649 of April 27, 2022, regulating the work at home law (Law 2088 of 2021).

The key regulations include:

Remote work: (1) the specific content that must be included in the remote work contract; (2) employer obligations regarding occupational health and safety, work tools, training, and compliance; and (3) employee obligations regarding compliance, health and safety, and work tools.
Work at home: (1) the definition of occasional, exceptional, or special circumstances; (2) the employees’ right to request to work at home; (3) the procedure and formalities to request and grant the right to work at home; (4) employer, employee, and risk entity (part of social security) obligations during work at home; (5) the entitlement to agree on the payment of compensation for the use of employees’ working tools; (6) the possibility to work at home from abroad; and (7) the termination of the work at home arrangement.

Mexico

On January 11, 2021, Mexican government issued the Decree that enacted the remote work regulation in Mexico.

To date there have been no modifications to this new regulation. However, on July 18, 2022, the 18-month term given by the Mexican government to the Mexican Ministry of Labor and Social Welfare to publish an Official Mexican Norm (NOM) regulating the obligations regarding occupational safety and health will expire.

This NOM, among others, must contain relevant regulations on ergonomic and psychological factors and other risks that may cause adverse effects to the life, physical integrity, or health of employees who work in teleworking mode.

Peru

In Peru there are two main modalities that allow distance work:

Telework, regulated by law 30036 of 2013, which allows employees to work without physical presence at the office through technological means. This framework requires employee agreement and payment of compensation for the remote tools and equipment; and

Remote work, which was enacted in response of the COVID-19 pandemic and provides a more flexible and less onerous modality. Remote work allows the employee to work from home or other remote location, provided that the nature of the work allows it. This modality does not require the agreement between the parties or employer payment for remote tools and equipment.

Decree No. 026-2020 that implemented remote work in Peru was issued on a temporary basis and was initially to be active through January 31, 2021. However, it has been extended until December 31, 2022.

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Caitlin and Juanita are part of Seyfarth’s leading International Employment Law practice. To find out more about remote work in Latin America, please reach out to them or anyone else on our specialist team.