COVID-19 pandemic has seen an increase in remote work which is encouraged and has even become mandatory in many countries for positions that enable remote work.
During lockdown and/or remote work prescriptions, many employees have opted for remote work in their country house or by the sea; some have even done so abroad.
Certain travel agencies have also proposed remote work packages, with offices, language courses, night excursions, in exotic destinations such as Indonesia, Morocco or Italy. Even pre-COVID, many hotels were transforming their rooms into offices or offering spaces for work to accommodate the needs of their customers and designing new offers such as Work from Anywhere by Marriott, Wojo or Mama Works with Accor.
Remote work is likely to be here to stay post-COVID-19, with varied destinations outside of the usual country of work and residence. But is remote work outside of the employee's home or even country possible? What rules and restrictions apply, if any?
Firstly, does remote work abroad require a special visa or work authorization? This remains unclear in many instances. Under French legislation, remote work abroad is not characterized as secondment, insofar as the work abroad is not requested by the employer but is at the employee's initiative. Thus, the rules that apply to secondment, in particular the rules regarding working time, minimum pay, vacation in the country where the work is carried out would not apply. In many cases, countries have not envisaged such punctual remote work so that employees will be able to travel without a visa, as if they were traveling for leisure. That being said, currently many countries have introduced travel restrictions for tourists due to COVID-19, but this will change.
Secondly, even if no work authorizations or visas are required, employers need to consider such remote work in terms of social security and health coverage and check whether it requires any specific formalities. Employees would remain under their employer's supervision and subordination during such remote work and accidents occurring during such work abroad would normally be considered as occupational accidents so that employers must ensure that their employee continue to be covered health-wise. Likewise, employers have a health and safety obligation vis-à-vis their employees so they must ensure that the work place is not dangerous. In the context of the pandemic, this could be the case in certain destinations where the virus is rampant and sanitary measures insufficient, but also post-COVID. Employees must therefore obtain their employer's prior authorization before leaving. If the employee leaves without his/her employer's authorization, such behaviour may be considered faulty and dismissal for violation of the employee's loyalty obligation and most likely company policies may be envisaged.
Normally, in the EU a person is subject to the social security regime in the country where s/he works. In the event of pluri-activity in several countries, the employee would remain under the social security of his/her country of residence if s/he carries out a substantial part of his/her activity in that country (25% or more). For travel in the EU, the employee may remain under the social security of his/her usual country of residence and the employer must then complete the A1 form, which attests to the social security regime applicable checking the work carried out in several countries option. In other countries, the employer and employee may need to pay social contributions in the country where the work is carried out, unless the employee can be considered as seconded. This will depend on bilateral or multilateral social security agreements. For France this can be checked on the Cleiss website.
Third, depending on how long the remote work abroad lasts, the employee may need to declare his or her income and pay income tax in the country where s/he remote works. This usually occurs when the employee resides six months or more in a country.
It is thus essential that any remote work abroad plan be well thought out and discussed with the employee and employer as it can have financial consequences for the employer. The employer should seek to define (i) the duration of such remote work abroad and limit it to less than six months, (ii) the authorized zone for travel and (iii) conditions for such remote work abroad (e.g., the employer may provide that it will not cover additional professional costs in particular of travel linked to the remote work abroad above and beyond normal professional expenses to and fro the employee's usual place of residence). The employer may also wish to define such rules more globally in its remote work policy covering such aspects as working hours for persons located on a different time zone and setting time when they must be available, providing technical assistance abroad in the event of IT issues and ensuring equality of treatment amongst employees (e.g. the remote working employee must continue to benefit from the same advantages). Bear in mind that if the employee needs to visit clients, with imposed quarantine rules which vary frequently, travel time may be increased.
Fourth, data security issues must be taken into consideration. Working remotely using hotel or another location WIFI may on the one hand violate company data security rules but especially may raise security issues with risks of data breaches, notwithstanding possible impacts on the quality of the work if the internet connection level is insufficient. Whilst remote working, employees will have access to the company's IT network and confidential files and data. The employer should ensure that the IT equipment used by its employees provides sufficient protection and it may wish to forbid the use of personal tools which do not always have the latest anti-virus tools or proxies in its IT or remote work policy.
Finally, remote work abroad may also lead to immaterial transfers of technology subject to specific regulations (such as dual use military and civil goods, which require prior authorization for export, or cryptology means which in France require a declaration or authorization with ANSSI). This could concern research and development on technology projects on which employees are working so that the employer may consider providing IT equipment without cryptology means if possible.
All these considerations must be taken into account before remote work abroad is authorized by the employer. Employers must also look at evolving rules. For the time being, such virtual work abroad is often not taken into consideration by most legislations, such as the French Labour Code, but this may change in the future as remote work abroad becomes more wide-spread, particularly post-COVID.
- This article has been drafted taking into account French law but its principles may apply European-wide. We recommend that employers check applicable provisions in their country but also in the country of destination when faced with employee requests for remote work abroad.