The New “Normal”: The Revised Implementing Rules and Regulations to the Telecommuting Act

Carmella Gaye D. Perez

In this age of rapidly evolving technology and the enduring risks of the COVID-19 pandemic, employers and employees alike have forged a new “normal” of the working environment—the work-from-home arrangement. However, this set-up is hardly new at all considering that Republic Act No. 11165 or the “Telecommuting Act”, the legislation which recognized telecommuting as a legitimate work arrangement in the private sector, had already been approved as early as 20 December 2018. Subsequently, Department Order No. 202, Series of 2019, was issued by the Department of Labor and Employment (“DOLE”) on 26 March 2019 as its implementing rules and regulations prior to its recent revision in Department Order No. 237, Series of 2022, issued last Friday, 16 September 2022.

In fact, in recognition of the work-from-home arrangement as the new model of operations and to settle the continuing issue on tax incentive claims concerning the conduct of business operations outside economic zones, the Fiscal Incentives Review Board (“FIRB”) has agreed to allow the transfer of registered Information Technology and Business Process Management (“IT-BPM”) companies to the Board of Investments (“BOI”). To effect the easy transfer of these registered business entities to the BOI, the 70-30 work-from-home arrangement for the IT-BPM sector has then been extended until 31 December 2022, in accordance with Presidential Proclamation No. 57 which extended the country’s declared state of calamity until year-end.

Telecommuting refers to a work arrangement that allows an employee in the private sector to work from an alternative workplace with the use of telecommunication and/or computer technologies. This basically allows an employee to work outside the premises of the employer’s place of business under such terms and conditions as mutually agreed upon without loss of the minimum labor standards set by law, without diminishing or impairing the terms or conditions of employment in any applicable company policy or practice, individual contract or collective bargaining agreement, and ensuring fair treatment as that of comparable employees working at the employer’s premises. In its most recent issuance, the DOLE expansively defined “alternative workplace” as any location where work, through the use of telecommunication and/or technology, is performed at a location away from the principal place of business of the employer, including but not limited to the employee’s residence, co-working spaces or other spaces that allow for mobile working. Meanwhile, the regular workplace refers to 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.

Despite this remote set-up, work performed in the employee’s alternative workplace shall still be considered as work performed in the employer’s regular workplace without considering such telecommuting employees as field personnel except when their actual hours of work cannot be determined with reasonable certainty. Considering the flexibility of this work-from-home set-up, the employer is still mandated to take appropriate measures in ensuring protection of data used and processed by the telecommuting employee for professional purposes, and in turn, the latter shall also ensure that confidential and proprietary information are protected at all times.

As already emphasized and highly encouraged, this work-from-home set-up is completely voluntary on both employers and employees. Given the likelihood that this arrangement may be subject to ill-execution, however, the telecommuting program mutually agreed upon must still abide by the minimum labor standards and offer fair treatment to telecommuting employees as much as it does to employees working in their employers’ premises.

As the dawn of the new “normal” arises, it is highly welcome that DOLE has taken upon itself to cast upon stone all there is to ensure in implementing this work-from-home arrangement. With this current trend of working remotely, it must be ascertained that employees and their employers, especially, still maintain the same level of professionalism and mutual protection of rights as is done when working “traditionally”.

This article is for informational and educational purposes only. It is not offered and does not constitute legal advice or legal opinion.

Carmella Gaye D. Perez is an associate of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW), Cebu Branch.

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(6332) 231-1449

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