Lisbon, Portugal

Portugal’s new homeworking law makes the country of the European Union a worker’s paradise.

Companies cannot attempt to contact their staff outside of working hours. They have to help staff pay their gas, electricity and internet bills. Bosses are prohibited from using digital software to track what their teleworkers are doing.

There is just one problem: the law might not work. Critics say the new rules are half-baked, lacking in detail and unworkable. And they can even backfire by making businesses reluctant to allow working from home.

“The law is poorly drafted and does not meet the needs of anyone,” says José Pedro Anacoreta, labor lawyer at PLMJ, one of Portugal’s leading law firms. “It’s not good for anyone. … It does not mean anything.

In many places around the world, the COVID-19 pandemic has accelerated an earlier trend towards the digitalization of work and more flexible working arrangements. In the midst of such a sudden and massive change in the employment landscape, governments are scrambling to incorporate homeworking into their employment laws. These efforts are still in their infancy.

Many Europeans have stopped making regular visits to the office since March of last year to help curb the spread of COVID-19.

In Europe, unlike the United States, workers’ protections are widely regarded as valuable rights. The dismissal of a staff member, for example, can result in substantial severance pay.

Without a promised directive from the European Commission on how to legally frame the shift to more extensive home-based work, legislative responses from governments have been patchy and piecemeal.

During the pandemic, some countries recommended telecommuting. Others, like Portugal, have demanded it. Most EU countries have specific legislation on teleworking, albeit with different approaches, and others are considering it through amendments, extensions or conventions.

As home work has grown in recent years, workers’ ‘right to disconnect’ – allowing staff to ignore work matters outside of formal working hours – was adopted before the pandemic in countries like Germany, France, Italy, Spain and Belgium. It is now becoming the norm.

But Portugal goes even further in this concept by reversing the responsibility on the companies. “The employer has the duty to refrain from contacting the employee outside working hours, except in cases of force majeure”, that is to say of an unforeseen or uncontrollable event, specifies the new law.

In addition, parents or guardians of children up to eight years of age have the right to work from home if they wish, provided the type of work they are doing is compatible with teleworking.

Fines for companies breaking the law are nearly 10,000 euros ($ 11,200) for each violation.

The Portuguese rules aim to remedy the drawbacks of what has come to be known as FMH.

Technology that makes it possible to work from home has also opened the door to abuse, such as endless working days, as staff remain reachable outside of their regular eight-hour shift. The consequences can include work-life attrition and a feeling of isolation.

But the new law has met with skepticism from those it is meant to protect.

Andreia Sampaio, a 37-year-old woman who works in communications in Lisbon, the Portuguese capital, agrees with the objective of the law but thinks it is too general and that it will be “very difficult” to enforce .

“We have to use common sense,” she said, adding that she doesn’t mind being contacted outside of business hours if it is an urgent matter. “We have to judge each case on its merits.

And she believes authorities will mainly act only on employee complaints – “but people will fear losing their jobs if they do.”

Driven by the pandemic but designed to apply in the future regardless of COVID-related measures, the law could come into force on December 1.

This is largely an original idea of ​​the center-left Socialist Party, which has governed Portugal since 2015. Before the election of a new government on January 30, it is keen to restore its letters of nobility and hoist a banner on workers’ rights.

Still, practical questions abound: Should staff be removed from company mailing lists at the end of their shift, then reinstated when they return to work? What about Europeans who work in the financial markets and need to know what’s going on in, say, Hong Kong, and have colleagues working in different time zones?

What if an industrial machine that cannot be stopped needed the attention of a stopped engineer? Who cannot “contact” the employee – the supervisor of the department? The CEO of the company? What constitutes a “contact” – a phone call, a text message, an e-mail?

“The devil is always in the details… but also in the implementation,” explains Jon Messenger, working conditions specialist at the International Labor Organization, a United Nations agency based in Geneva.

The Portuguese Confederation of Businesses, the largest group of companies in the country, was not involved in drafting the new law and believes it is full of holes.

The rules for teleworking must be flexible, adapted to each sector and negotiated between employers and staff, says Luís Henrique of the confederation’s legal department.

“We treat completely different situations as if they were all the same. It’s not realistic, ”said Henrique. “(The law) cannot be uniform. “

Maintaining order and enforcing the new rules can also be difficult in what is one of the economically poorest countries in the EU. In Portugal, which is known for its red tape and slowness of justice, as well as poorly staffed public services, how long will it take for a complaint to filter through the system and lead to a result?

Across Europe over the past decade, the number of labor inspections has ‘collapsed’, according to data analyzed by the Brussels-based European Trade Union Confederation, which represents 45 million members in 39 European countries .

The country with the biggest drop in the number of inspections since 2010? Portugal, with 55% fewer checks until 2018.

“Ambitious and progressive laws… come up against the reality that the means to control them are not yet in place,” said Henrique of the Confederation of Portuguese Businesses.