Law 83/2021, of December 6, which will surely become known as “the teleworking law” – and actually contains a set of amendments and additions to the Labor Code – does not deal only with that subject matter. In particular, the new Article 199-A that was inserted into the Code applies to all labor relations, whether in person or remote. It deals with the issue, lately often debated, of the existence, for every worker, of a “right to disengage” or “to disconnect” during the periods normally dedicated to rest and to personal and family life.
This legal provision is not exactly clear. It starts by referring, in paragraph 1, to a “duty to refrain” on the part of the employer; subsequently, in paragraph 2, it talks about the worker’s “right to the rest period.” Some practical issues raised by this legal provision cannot be resolved either swiftly or unequivocally. Nevertheless, there seems to be no room for doubt as regards the basic intention of the legislator, which is to prevent any disturbance, unwanted by the worker, of his/her full enjoyment of rest and leisure.
The first question that can be raised relates to the determination of the “rest period” mentioned by the law. When determining that rest period, several possibilities arise. It is clear, for example, that the employer is not prevented from asking the worker to perform work after his/her regular working hours – i.e., overtime. The “rest period” begins only when the performance of work under the employer’s authority ends. There is no deviation from the rules governing the various forms of overtime work. On the other hand, the “rest period” ends at the moment when, in accordance with the contract and any instructions the employer might have given, the worker is obliged to present him/herself for work each day.
While the issue must be considered in relation to the particulars of each specific situation, the “rest periods” are those in which the worker is not contractually bound to remain available for work.
A specific case is the exemption from working hours. In any of its modalities, as provided for by the law, it entails the absence of fixed working hours. This means that the worker may be called to perform work at any given moment and for periods that depend on the exemption agreed. However, the law (Article 219(3)) protects the right to the mandatory and supplementary weekly rest days, to the interruption of work on holidays and to the daily rest periods (between two working days). Those periods can be established in various ways, leading to specific situations that could raise several questions, but they must always be set – and during such periods, the “duty to refrain” that Article 199-A alludes to will apply.
This provision creates an exception for situations of “force majeur,” which are characterized by their unpredictability and inevitability. These are events concerning the company that can cause its destruction or serious damage to it. When they occur or are imminent, the employer will be exempt from complying with the “duty to refrain from contacting” the worker, being allowed to call or summon the worker during a rest period. There is, however, a wide array of possibilities, requiring careful consideration of each specific case.
António Monteiro Fernandes, Of Counsel @ DCM | Littler