Many would agree that as of late we seem to be living in a somewhat surreal world. Prior to this pandemic, we had all been leading incredibly busy lives, yet in an instant, everything came to a halt, and we have now found ourselves trying to navigate this new reality.
We’ve all had to adjust to this new norm, companies included. A great number of companies have had to churn out emergency contingency plans and had to work around the clock to ensure that their employees could telework.
The word telework has acquired a more important meaning with the outbreak of this pandemic, it is, without a doubt a crucial social distancing mechanism.
At law, however, is telework regulated, and if so, how is it regulated?
Telework under Maltese Law
Maltese Law regulates the concept of telework by means of the Telework National Standard Order (S.L 452.104).
S.L. 452.104 defines telework as “a form of organising and, or performing work, using information technology, in the context of an employment contract or relationship, where work, which could also be performed at the employer’s premises, is carried out away from those premises on a regular basis”.
The National Standard Order delineates conditions which must be adhered to in the case of teleworking. The Law stipulates that a telework agreement shall, first and foremost, be in writing. The agreement must also necessarily contain certain requisites, namely:
- information on the location where the telework should be carried out;
- provisions related to the equipment which will be used for teleworking, including the ownership, liability, maintenance and costs;
- the amount of time to be spent at the workplace and at the place of telework – this in cases where an employee will be interchanging between telework and work from the employers’ premises;
- a schedule by which the employee will perform telework, if applicable;
- a description of the work to be performed by the employee;
- the department to which the employee carrying out telework is attached to, and the teleworker’s superior or other persons to whom the employee carrying out telework can report as well as reporting arrangements;
- provisions relating to monitoring, if any;
- notice of termination of the telework agreement and
- in cases where telework is undertaken in the course of the employment relationship and there is no reference to teleworking in the employment contract, a reference to the right of reversibility by either party, including the right of the employee carrying out telework to return to his pre-telework post.
It is also important to note that where monitoring is to be carried out by the employer, both the employee and the employer must agree to such monitoring in the telework agreement, and it is fundamental that such monitoring system is in proportion to the objective and is introduced in accordance with Council Directive 90/270 on the minimum safety and health requirements for work with display screen equipment.
Financial Support and Application
The Government of Malta has recently provided for the facilitation of Telework Activities in the form of financial support for all employers, irrespective of sector, who have invested in technology that enables teleworking and to partially cover the costs of teleworking solutions.
Support by virtue of this grant is limited to €500 per teleworking agreement and €4,000 per undertaking. The grant shall be awarded against 45% of the eligible cost and the call is eligible for costs incurred between 15th of February 2020 and 8th of May 2020. In order to be eligible therefore, the employee should not have had an active teleworking agreement prior to the 15th of February 2020. Furthermore, the total support under this call shall be capped at €2 million.
The grant shall cover costs for:
- Purchasing and/or leasing of computer hardware (including operating systems) which are considered portable including installation and setting up of connectivity software;
- Communication solutions (hardware and software) that allow different users to connect to their place of work (VPN, Point-to-point connection etc.)
Cloud based solutions are also eligible if they are claimed with new teleworking agreements. The eligible costs shall be the amount paid but, shall be reduced pro rata if the services cover a period of more than 12 months. Items should be claimed excluding VAT. This grant, however, excludes costs incurred in relation to mobile phone devices and communication costs including the increase in bandwidth.
It is also important to note that there will be no obligation to maintain teleworking agreements beyond the COVID-19 crisis.
The applicant is required to provide:
- A signed Teleworking Agreement commencing not earlier than the 15th of February 2020;
- A document signed by the employee as a confirmation that the employee has sole responsibility of the hardware and software left in his/her care;
- A copy of invoices together with proof of payment of the eligible costs;
- In case of leased equipment, a copy of the lease agreement.
It is also fundamental to note that participation in the grant is subject to the De Minimis Rules in terms of Regulation (EU) No 1407/2013 on de minimis aid for state aid.
How can we help?
Should you require any assistance relative to how your business may benefit from this Scheme, please do not hesitate to reach out to us personally.
©Fenech & Fenech Advocates 2020
Disclaimer │ The information provided on this Update does not, and is not intended to, constitute legal advice. All information, content, and materials available are for general informational purposes only. This Update may not constitute the most up-to-date legal or other information and you are advised to seek updated advice.