DOLE Releases Revised Implementing Rules and Regulations of the Telecommuting Act

On 16 September 2022, the Department of Labor and Employment (“DOLE”) issued Department Order (“DO”) No. 237, series of 2022 to provide the Revised Implementing Rules and Regulations (“Revised Rules”) of Republic Act No. 11165 or the Telecommuting Act. The Revised Rules shall apply to employers and employees in the private sector implementing a telecommuting program. 

Application of Labor Standards to Telecommuting

The terms and conditions of telecommuting shall not be less than the minimum labor standards and shall not in any way diminish or impair the terms or conditions of employment contained in any applicable company policy or practice, individual contract, or collective bargaining agreement.

Work performed in an alternative workplace shall be considered as work performed in the regular workplace of the employer. It must also be noted that all time that an employee is required to be on duty, and all time that an employee is permitted or suffered to work in the alternative workplace shall be counted as hours worked. Further, telecommuting employees are not considered field personnel except when their actual hours of work cannot be determined with reasonable certainty.

The employers and employees may also agree on hybrid arrangements where work can be performed in both the regular and alternative workplace, or to compressed workweek or staggered working time arrangements, or to other recognized forms of flexibility. Such arrangements may be incorporated in the telecommuting program.

Form of Telecommuting Program

An employer may offer its employees, on a voluntary basis, a telecommuting program upon such terms and conditions as they may mutually agree upon. Any employee or group of employees may also propose a telecommuting program to the employer.

The telecommuting program may be in the form of a separate policy, or incorporated into existing policies, or employment contracts, or in such other form convenient to the parties; provided that in every case there is evidence that the employer and the employees voluntarily agreed to adopt the program. 

Content of Telecommuting Program

The telecommuting program shall contain provisions to ensure its effective implementation, including but not limited to provisions on a) eligibility; b) alternative workplace/s; c) telecommunication and computer technology; d) occupational safety and health; e) performance evaluation; f) code of conduct; g) data protection, confidentiality and security; h) emergency protocols; i) duration; and j) dispute resolution.

Fair Treatment

Employees must be given the same treatment as those comparable employees working at the employer’s regular workplace. All telecommuting employees shall be covered by the same set of applicable rules or company policies, or by the Collective Bargaining Agreement (“CBA”), if any. They shall also:

1. Receive a rate of pay, including overtime and night shift differential, and other similar monetary benefits not lower than those provided in applicable laws, and/or CBA for authorized hours of work at home or an alternative workplace in accordance with the telecommuting agreement;
2. Have the right to rest days, regular holidays, and special non-working days;
3. Have the same or equivalent workload and performance standards as those of comparable workers at the employer’s premises; provided that the parties may mutually agree to different performance standards that may be more appropriate given the location of the employee is not at the premises of the employer;
4. Without additional cost, have the same access to training and career development opportunities as those of comparable workers at the employer’s premises, and be subject to the same appraisal policies covering these workers, including the qualification provided on the preceding item;
5. Without additional cost, receive appropriate training on the technical equipment at their disposal, and the characteristics and conditions of telecommuting; and
6. Have the same collective rights as the workers at the employer’s premises and shall not be barred from communicating with workers’ representatives.

The employer shall also ensure that measures are taken, as much as reasonably possible, to prevent the telecommuting employee from being isolated from the rest of the working community in the company by giving the telecommuting employee the opportunity to meet, physically or through telecommunication, with colleagues on a regular basis and, when practicable, allow access to the employer’s premises and company information.

Implementation and Administration of Telecommuting

The facilities, equipment and supplies necessary to implement a telecommuting program and to enable the employee to perform work in an alternative workplace, including expenses for the acquisition, proper handling, usage, maintenance, repair, and return thereof, are considered ordinary and necessary costs of the business of the employer. 

The parties to telecommuting shall be primarily and jointly responsible for its administration. Differences arising from the implementation or interpretation of a telecommuting program shall be treated as grievances which shall first be resolved through the grievance mechanism established under the program, company policy or CBA. In the absence of which, the parties shall endeavor to resolve the differences through dialogue and consultation.

Assistance from the concerned Regional or Field Office of DOLE for conciliation or mediation in accordance with DO No. 151, series of 2016 may be requested. Parties may also resolve grievances through voluntary arbitration. 

Notice, Monitoring and Reporting

The employer shall notify the DOLE of the implementation of telecommuting through the Establishment Report System. All branches, satellite offices, or similar operational units implementing telecommuting, if any, shall be included in the notice.

Effect on Existing Company Practice, Policy or Agreement

The terms of any similar voluntary agreement between an employee and an employer shall be respected and shall continue to be effective unless they are not in conformity with the above Rules.