The ‘new normal’: The revised rules on telecommuting
Due to rapidly evolving technology, coupled with the enduring risks of the coronavirus disease 2019 (COVID-19) pandemic, employers and employees alike have forged a “new normal” working environment — the work-from-home arrangement.
However, this setup is hardly new at all considering that Republic Act No. 11165, or the “Telecommuting Act,” which recognizes telecommuting as a legitimate work arrangement in the private sector, was approved on Dec. 20, 2018.
Subsequently, Department Order No. 202, Series of 2019, was issued by the Department of Labor and Employment (DoLE) on March 26, 2019, as its implementing rules and regulations prior to its recent revision in Department Order No. 237, Series of 2022, issued Sept. 16.
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”).[1]
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 Dec. 31, in accordance with Presidential Proclamation No. 57 which extended the country’s declared state of calamity until year-end.[2]
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.[3] 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,[4] without diminishing or impairing the terms or conditions of employment in any applicable company policy or practice, individual contract or collective bargaining agreement,[5] and ensuring fair treatment as that of comparable employees working at the employer’s premises.[6]
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.[7]
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.[8]
Despite this remote setup, work performed in the employee’s alternative workplace will 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.[9]
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 will also ensure that confidential and proprietary information are protected at all times.[10]
As already emphasized and highly encouraged, this work-from-home setup is completely voluntary on both employers and employees.[11]
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[12] and offer fair treatment to telecommuting employees as much as it does to employees working in their employers’ premises.[13]
As the dawn of the new “normal” arises, it is highly welcome that DoLE has taken upon itself to come up with rules to ensure the proper implementation of 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 as and does not constitute legal advice or legal opinion.
1 “FIRB approves transfer of registered IT-BPM enterprises to BOI, irons out long-standing WFH problem,” Sept. 16, 2022, available at https://firb.gov.ph/firb-approves-transfer-of-registered-it-bpm-enterprises-to-boi-irons-out-long-standing-wfh-problem/, last accessed on Sept. 19, 2022.
2 Ibid.
3 Republic Act No. 11165, Section 3.
4 Republic Act No. 11165, Section 4; and Department Order No. 237, Series of 2022, Section 4.
5 Department Order No. 237, Series of 2022, Section 4.
6 Republic Act No. 11165, Section 5; and Department Order No. 237, Series of 2022, Section 8.
7 Department Order No. 237, Series of 2022, Section 3(a).
8 Department Order No. 237, Series of 2022, Section 3(c).
9 Department Order No. 237, Series of 2022, Section 4.
10 Republic Act No. 11165, Section 6.
11 Republic Act No. 11165, Section 4; and Department Order No. 237, Series of 2022, Section 5.
12 Department Order No. 237, Series of 2022, Section 4.
13 Department Order No. 237, Series of 2022, Section 8.
Carmella Gaye D. Perez is an associate of the Cebu Branch of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW).
