On September 16, 2022, the DOLE issued Department Order No. 237, series of 2022, or the Revised Implementing Rules and Regulations of Republic Act No. 11165 or the Telecommuting Act (“Revised Telecommuting Rules”).
The Revised Telecommuting Rules clarified the definition of an “alternative workplace” and a “regular workplace”. An alternative workplace is “any location where work, through the use of telecommunication and/or computer technology, is performed at a location away from the principal place of business of the employer, including but not limited to the employees’ residence, co-working spaces, or other spaces that allow for mobile working.” On the other hand, a regular workplace is the principal place of business, or any branch office or physical premises established or provided by the employer where employees regularly report to or perform work. The Revised Telecommuting Rules also defined “computer technology” as “all electronic media and services including computers, software, electronic mail, telephones or mobile phones, voicemail, facsimile machines, online services, and the internet.”
Greater Protection to Telecommuting Employees
In addition to reiterating that the terms and conditions of telecommuting shall not be less than the minimum labor standards under the law, the Revised Telecommuting Rules now provides that telecommuting shall not in any way diminish or impair the terms or conditions of employment contained in any applicable company policy or practice, individual contract, or collective bargaining agreement. It further states that work performed in an alternative workplace shall be considered as work performed in the regular workplace of the employer, and that all the time that an employee is required to be on duty , and all the time that an employee is permitted or suffered to work in the alternative workplace, shall be counted as hours worked.
An important delineation made in the Revised Telecommuting Rules is that of the status of telecommuting employees vis-à-vis field personnel. It states that telecommuting employees are not considered field personnel, except when their actual hours of work cannot be determined with reasonable certainty.
The Revised Telecommuting Rules also provides that other hybrid arrangements where work can be performed both in the regular and alternative workplace, or compressed workweek or staggered working time arrangements, may be adopted separately or incorporated in the telecommuting program.
Form of the Telecommuting Program
The Revised Telecommuting Rules state that the initiative to establish a telecommuting program may come from either the employer or the employees. As to the form, the telecommuting program may be in the form of a separate policy, or incorporated into existing policies or employment contracts, or may be in such other form that is convenient to the parties, provided that there is evidence that the employer and employees voluntarily agreed to adopt the program.
The Revised Telecommuting Rules also provide a more detailed guide for telecommuting programs.A telecommuting agreement must provide for the minimum provisions on eligibility for telecommuting. This takes into account, among other items, the job qualifications, the nature of the work, and the personal circumstances of the employees.
The agreement must also provide for the alternative workplaces acceptable for telecommuting as well as the minimum requirements for computer hardware and software suitable for the work. It must also contain occupational safety and health standards, including mental health programs, common performance standards for telecommuting employees and those at the employer’s premises, a code of conduct for telecommuting employees to follow, and standards for data protection and confidentiality. There should also be emergency protocols to address device breakdowns and weather disturbances. Lastly, the duration of the telecommuting program and provisions on dispute resolution must be provided for in case of disputes arising from the implementation of the telecommuting program.
Implementation of the Telecommuting Program
Under the Revised Telecommuting Rules, the facilities, equipment and supplies necessary to implement a telecommuting program, and to enable the employee to perform his or her work in an alternative workplace, including expenses for the acquisition, proper handling, usage, maintenance, repair and return of equipment, are considered ordinary and necessary costs of the business of the employer.
In the previous implementing rules and regulations, differences in interpretation and implementation of a telecommuting program should be resolved through the grievance mechanism of the company and, if there is no such grievance mechanism, the grievance shall be referred for conciliation and mediation to the regional office or field office of the DOLE. Under the Revised Telecommuting Rules, in the absence of a grievance mechanism, the parties shall endeavor to resolve the difference through dialogue and consultation. In case of unresolved grievances, the parties may request assistance from the regional office or field office of the DOLE for conciliation or mediation or they may go through voluntary arbitration.
If an employer seeks to implement a telecommuting program, notice must be given to the DOLE through the Establishment Report System, which may be accessed at https://reports.dole.gov.ph/. The notice shall include all branches, satellite offices, or similar operational units, if any, implementing the telecommuting program.
For further information, please contact:
Ronald Mark C. Lleno, Partner, SyCip Salazar Hernandez & Gatmaitan