Telework or work at home contract (case)

Situation:

A company ABC SRL that provides IT services have a large number of employees in telework, residing in other cities. They come periodically to the company’s headquarters. Periodically, at least once a month, they are called to the company’s headquarters.

Can the delegation be considered the movement of the employees from their domicile to the company’s headquarters located in another locality than the employees’ domicile? Can the accommodation expenses incurred in the locality where the company has its headquarters be reimbursed?

Solution:

According to article 5 paragraph (2) of Law 81/2018 on the regulation of telework activity, in case of telework activity, the individual employment contract contains, in addition to the elements provided in article 17 paragraph (3) of Law no. 53/2003, republished , with subsequent amendments and completions, the following:

  1. the express specification that the employee works in telework regime;
  2. the period and / or the days in which the teleworker carries out his activity at a job organized by the employer;
  3. Repealed by point 3. of the Emergency Ordinance no. 36/2021 starting with 06.05.2021. (place / places of teleworking activity, agreed by the parties – before repeal)
  4. the program within which the employer is entitled to verify the activity of the teleworker and the concrete way of carrying out the control;
  5. the way of highlighting the working hours provided by the teleworker;
  6. the responsibilities of the agreed parties depending on the place / places of carrying out the telework activity, including the responsibilities in the field of safety and health at work in accordance with the provisions of articles 7 and 8;
  7. the obligation of the employer to ensure the transport to and from the place of carrying out the telework activity of the materials that the teleworker uses in his activity, as the case may be;
  8. the obligation of the employer to inform the teleworker about the provisions of the legal regulations, of the applicable collective labor contract and / or the internal regulation, regarding the protection of personal data, as well as the obligation of the telemarketer to comply with these provisions;
  9. the measures taken by the employer so that the telemarketer is not isolated from the rest of the employees and which ensures him the possibility to meet with colleagues regularly;
  10. the conditions under which the employer bears the expenses related to the telework activity.

As provided in letter b) above in the individual contract with the telework clause / additional act must be mentioned the period and / or days when the telemarketer carries out his activity at a job organized by the employe

In other words, the days when the employee works at the registered office or at another job organized by the employer must be mentioned.

On the days when the employee performs activity at the registered office as mentioned in the individual employment contract, the employee is not delegated because he travels to the workplace provided in the individual employment contract.

Under these conditions, the employer does not have the obligation to bear the value of transport and accommodation because the employee is not delegated. Also, the employee is not entitled to the daily allowance.

In the conditions in which the employer bears these expenses, they will represent salary incomes for the employee taxed with income tax and social contributions.

As an exception, based on Article 76 paragraph (4) letter a) of the Fiscal Code, the value of transport to and from work will be included in social expenses and will not represent salary income if it was provided in the individual or collective employment contract or in the internal regulation that the employer bears the value of the transport and it is borne according to the clauses of the employment contract / internal regulation.

We remind you that according to article 43 of the Labor Code, the delegation represents the temporary exercise, at the employer’s disposal, by the employee, of some works or tasks corresponding to the service attributions outside his place of work. Provided that the place where the employee is temporarily sent to perform the activity is not his place of work where he usually performs the activity and is not registered in the individual employment contract, the delegation may be ordered by the employer.

During this delegation period, if the locality where the employee is sent is at a distance of more than 5 km from the locality where he has his job, the employee has the right to benefit from daily allowance, transport and accommodation.

According to Article 2 letter a) of Law 81/2018 on teleworking, teleworking is the form of work organization through which the employee, regularly and voluntarily, fulfills his duties specific to the position, occupation or profession he holds elsewhere than work organized by the employer, using information and communication technology.

Therefore, if the employees perform activity from another job than one organized by the employer, using information and communications technology (as is the case of the exposed situation), the activity is performed in telework.

Thus, this type of work cannot be classified as work at home and it is not up to the employer to choose an activity in telework or home work contract.

Work at home was regulated in the Labor Code for the first time in 2003, but in the absence of digitalization, it was much less complex than it is now. The professional categories that could work from home were those that did not depend on technology and did not use information technology to carry out their activity.

Therefore, in the exposed situation, the work of the mentioned employee cannot be performed on the basis of a work-from-home contract but only on the basis of a contract with a telework clause. 

Legal basis:

Law 81/2018 on the regulation of telework activity;

Labor Code of 2003 (Law no. 53 of January 24, 2003) – republished, with subsequent amendments and completions.