With the entry into force of the State of Health Emergency in March of last year 2020 (and still in force), employers were authorized to implement the modality of “remote work” within their corporations, being applicable to: workers of the “Risk Group for Age and Clinical Factors” (comorbidities) provided by express regulations of the Health Sector; pregnant and nursing mothers (up to the first year of life of the child); workers with disabilities; jobs that were compatible with such form of provision of subordinate services; workers prevented from entering Peru by the provisions of the Ministry of Transport and Communications in the framework of the Pandemic COVID-19, among others – modifying, in that sense, the place where they would carry out their work. This was mandatory for some of them, and optional in the case of others.
Now, it should be noted that, although some few corporations or companies in Peru used telecommuting for its effective application in and for some certain positions, in total or mixed form, prior to the Pandemic COVID-19, having adopted this modality by their own decision or derived from indications or guidelines from their foreign parent companies in this regard, this was carried out under the figure known as “teleworking” that although it is regulated by specific labor legislation in force, it was not strictly speaking very well received. The Congress of the Republic, recently has approved a Bill to replace the Law of Telework of Peru still in force, and for the adequacy of the legislation of exception that regulates the “remote work”.
The “remote work” known as such in the country, has been temporarily regulated within a context of emergency, through the Emergency Decree No. 026-2020 and complementary rules in order to specify the relevant aspects and scope for its implementation. (Although the “telework” and “remote work” are modalities of remote work and figures of modality of provision of similar subordinate services, they do not necessarily have the same characteristics and nuances the same).
Let us remember that the “remote work” is characterized mainly by the change of the place of work, of the usual workplace of the worker arranged by the employer, by that of his/her domicile (or the place where he/she is on the occasion of the Pandemic by COVID-19).
Thus, the worker will use the means and mechanisms that enable him/her to carry out his/her tasks -or as similar as possible- to how he/she performed them before adopting this modality, provided that such functions and tasks can be carried out outside the workplace.
This situation would not cause major problems or inconveniences as long as the Peruvian or foreign worker is working for a local company in Peruvian territory, only the place of rendering of his/her personal services would change (even being able to be performed abroad temporarily, if so agreed by the worker and the employer, and the regulations of the foreign country allow it). However, what will happen in the case of foreign workers who are outside Peru and who will be hired by a local company, if applicable, under the remote work modality? Peru does not have, to date, specific legal immigration regulations regarding the provision of labor services under the modality of “remote work” to be carried out by foreign workers, nor specific labor regulations in this respect, and, specifically, there is no immigration status or immigration subcategory that enables the foreign worker to provide his/her services in such manner subject to express legal regulations, at least temporarily or circumstantially, except for the impediment to enter the national territory as we have mentioned.
With the above mentioned Emergency Decree it could be assumed that national or foreign workers who cannot travel to Peru due to the closing of the borders in the country where they are, if such is the case -since in Peru the borders are already open, except for certain very specific cases – this could result in such workers being able to carry out their work from the place where they are, they could perform their work from abroad, but only on the occasion of the current situation, although strictly speaking the rule in question suggests that it has been drafted thinking mainly and oriented to national personnel.
Thus, going deeper into this problem and pointing out the main impasse, the same does not necessarily happen with those foreign workers who are in the process of being hired by a Peruvian company. Let us remember that, from a legal point of view, in order for a foreign worker to work in Peru, he/she needs to have an enabling migratory status and an individual employment contract duly approved/registered before the Peruvian Labor Authority. There are two ways to obtain them:
the Change of Migratory Status procedure and
the Visa Application with Consular Phase procedure.
In the former, the presence of the worker – visa applicant – is mandatory, i.e., he/she must travel to Peru to initiate the labor and/or immigration procedure, depending on the immigration status to be applied for, and comply with some requirements in person, while in the latter, the worker may remain outside Peru while the visa process is initiated in our territory – through a proxy – and the evaluation is carried out. At the end, once the visa has been approved and the passport stamped at the Peruvian consulate abroad, he/she must be present in Peru to complete the procedure and obtain his/her foreigner’s card, if he/she is a resident.
Thus, in the absence of a subcategory of migratory quality that could be called “Remote Worker”, either temporary or resident, foreign workers are forced, in a certain way, to have to travel to Peru in order to obtain a work permit, in either of the two cases, although at different times. Having said this, it is worth mentioning that more than a year has passed since the incorporation of this work modality into Peruvian labor law, which is intended to prevent the spread of COVID-19 in the territory by allowing workers to work from home, It is more than necessary to apply this modality transversally and to apply it to as many foreign workers as possible, which evidently takes into account those with the intention of obtaining work permits in Peru, who could remain in their current countries of residence, establishing the applicable nuances of a labor and migratory nature. Note that tax and social security implications will also need to be clarified.
Remote work is a modality that is here to stay, which has been applied in different work centers on the occasion of the Pandemic, but not only for this reason. For this reason, it is extremely necessary that the legal regulations in the labor, immigration, tax and social security areas be modernized and adapted to the current times, the needs of the parties that make up the work relationship and of course the new forms of work that we are discovering, adopting the necessary measures to be able to regulate it, for example, with a new subcategory of migratory quality for foreign personnel. There is, therefore, much to be done, as can be seen, and the rules must be adapted to our times.
Angela Orrego-Villacorta Tejada
Associate at AOV Abogados