Remote Working Legislation, Laws & Regulations in Spain

Yes. Remote working is regulated in art. 13 of the Spanish Workers' Statute (SWS) and in Law 10/2021 of 9 July on remote working.

Remote working regulations apply to all employees who telework on a regular basis – i.e. provide their services remotely at least 30% of their working time in a reference period of 3 months.

Remote working cannot be imposed unilaterally by the company or by the employee, it should be agreed between both parties.

In order to do so, and before beginning to work remotely, a written agreement must be formalized and be attached to the employment contract. This agreement should regulate, among other things:

• An inventory of the resources, equipment and tools necessary for providing services;
• Expenses in which the employee may incur, as well as how this should be calculated;
• Term of the remote working arrangement and notice periods for reversing it;
• Percentage and split between on-site and remote working;
• The company's control measures;
• The employee's chosen remote working location.

Moreover, the company will provide the employees' representatives with copies of all remote working agreements and details of all actions taken. Once the above has been carried out, said copies will be sent to the employment authority. 

No. Remote working is voluntary and reversible for the employee and for the company.

No.

However, when an employee asks to work from home due to childcare, the employer's refusal must be justified on objective grounds (Article 34 SWS), such as technical impossibility and potential business disorganisation.

Yes. Employees are entitled to adequate provision and maintenance of all the necessary resources, equipment and tools. Also, the company should provide technical assistance when needed.

Yes. The company must assume expenses related to the resources, equipment and tools necessary for the provision of services. These costs cannot be borne by the employee.

No, even if for simplification purposes it is usual practice to agree a fixed allowance as compensation of expenses.

Yes, employees rendering services from home must be entitled to the same health and safety level of protection as employees working on-site. However, risk assessment and planning of preventive activity should be adapted to specific remote working risks.

The employer is obliged to track working time through the working time registry – without prejudice to the greater time flexibility that may be involved in the development of remote working.

Also, the employer should guarantee downtime. This implies, amongst other things, limiting the use of work-based communication technologies during rest periods. Following consultation with the employees' representatives, companies must draw up an internal policy aimed at ensuring and raising awareness of the right to digital downtime.

Remote employees do not need to be covered by any specific insurance policy.

That said, certain CBAs set forth collective insurance policies that companies must hire in favour of its employees. If that is the case, remote workers should be covered by the same relevant insurance as the rest of employees.

Yes, benefits arising from work-related accidents and illnesses apply if an accident occurs while the employee is working from home. However, to be considered a work accident, the event must take place while the employee is performing work-related services.

Before removing any expenses compensation paid by the company, it should be analysed whether it is possible to do so or if these amounts should be considered as part of the salary which cannot be unilaterally removed. In the first scenario it would be possible to agree to compensating these two amounts, but not in the second.

The employee should use IT devices provided by the company according to the company’s criteria for their use.

In December 2022, Law 28/2022, of 21 December, on the promotion of the start-up ecosystem was approved. Through this law for the promotion and development of entrepreneurship in the country, a new visa has been set up for digital nomads and foreigners working remotely from Spain.

The international telework visa can be requested by all non-EU citizens who wish to carry out an employment or professional remote work activity in Spain and who can accredit:

• a graduate or postgraduate qualification;
• vocational training and schools of recognised prestige; or
• prove that they have more than 3 years of experience.

Pursuant to Law 14/2013, of 27 September, on support for entrepreneurs and their internationalisation, the general requirements to reside in Spain are the following:

• not being irregularly in Spain;
• being above 18 years of age;
• not having any criminal record in Spain and in the countries where the employee has resided during the last two years, for offences in the Spanish legal system. Furthermore, employees must submit a declaration that they have not had a criminal record for the last five years;
• not appearing as rejectable in the territorial space of countries with which Spain has signed an agreement to that effect;
• have a public health insurance policy or a private health insurance policy with an insurance company authorised to operate in Spain;
• have sufficient financial resources for themselves and their family members during their period of residence in Spain;
• pay the fee for the processing of the authorisation or the visa.

In addition to the aforementioned general requirements for being able to reside in Spain, since the enforcement of the Law 28/2022, the following must be accredited:

• the existence of a real and continuous activity for at least one year of the company or group of companies with which the employee has an employment or professional relationship;
• documentation proving that the employment or professional relationship can be carried out remotely;
• in the case of an employment relationship, proof must be provided of its existence between the employee and the company not located in Spain for at least the last three months prior to the submission of the application, as well as documentation accrediting that the company allows the employee to carry out the work activity remotely;
• In the case of the existence of a professional relationship, it must be proven that the individual has had a business relationship with one or more companies not located in Spain for at least the last three months, as well as documentation accrediting the terms and conditions under which he/she is going to carry out the professional activity at a distance.

Spanish legislation does not specifically regulate the term “Workation” or include any specific provision regarding remote work abroad.

Therefore, work abroad is simply considered any work performed conducted outside Spanish territory. In this regard, general rules on Social Security and health and safety must be observed. 

Spanish remote working regulations governed by Law 10/2021 on remote work do not include any provision on remote working abroad.

Therefore, international regulations on the applicable employment law must be observed. The regulations from the country in which employees render their services should be observed unless there has been a specific legal choice to apply Spanish employment regulations. Even if there has been a choice of law, the minimum employment conditions of the destination country must be respected, particularly if these regulations are more advantageous to the remote worker than those of the home country.

The general rule is that the applicable Social Security system will be the system of the country where the services are rendered. However, depending on whether remote working is conducted from a EU member country, or whether there are bilateral collaboration agreements between the countries involved, it may be possible to keep the Social Security regime of the country of origin.

Typically, the standard procedure for employees temporarily posted by their employer and working in another country within the EU or to a country with a bilateral agreement with Spain involves requesting an A1 certificate that states that the affected employee is subject to Spanish Social Security regulations in Spain while temporarily abroad.

This application for information on applicable Social Security legislation is submitted so that the relevant authorities can issue a certificate guaranteeing that the employee remains subject to Spanish Social Security legislation during their temporary assignment to another country. Consequently, if granted, companies are exempt from making contributions in the country where their employees are working remotely.

Although there are no specific regulations regarding voluntary remote work from outside Spain, the Spanish Social Security authorities issue the A1 certificate in cases of voluntary remote work from an EU country by considering the process as if it were a posting. This, however, is considered on a case-by-case basis, depending on the time period or percentage of working time from Spain versus the percentage of working time from abroad.

In our experience, however, for those countries outside the EU, even if there is a bilateral agreement between certain countries and Spain that allows keeping the Spanish Social Security system when posting to those third countries, Spanish Social Security authorities reject the A1 request when the grounds for working abroad is the unilateral decision of the employee to work remotely from abroad and is not a posting by the employer.

From a tax point of view, any individual who is deemed to be a Spanish tax resident in accordance with the tax residence criteria of the Spanish domestic law, would be taxed under Spanish Personal Income Tax (PIT) for the income they receive from their employment relationship. In order to be considered a tax resident in Spain – one of the criteria for internal residence – is to stay in Spanish territory for more than 183 days. Therefore, if the remote work is carried out for a short time by a person who habitually resides in Spain, the period of remote work abroad would not affect his tax residence or from being taxed by the Spanish PIT.

In the event that the country in which the remote work is carried taxes the Spanish resident’s employment income generated in its territory, the individual could deduct the amount paid abroad from his or her PIT (provided that this amount does not exceed the amount that would have been taxed in Spain for the remuneration generated in that foreign country).

From a labour perspective, an employee with a nationality of the European Union (EU), European Economic Area (EEA) or Switzerland (EU National) is allowed to live and work in other EU/EEA countries and Switzerland without a visa or residence permit.

However, if an EU National wishes to work in a country outside of the EU, EEA and Switzerland or if the relevant individual is a national from outside the EU, EEA or Switzerland and works in Spain, he or she must have a valid residence permit and/or work permit to be able to work legally in Spain. We would advise to check such requirements with a local legal counsel.

From a tax standpoint, an individual is deemed a tax resident in Spain if any of the following requirements is met: (i) the stay in Spain more than 183 days during the calendar year, or (ii) the main core or base of the taxpayer activity or economic interests is in Spanish territory. In addition, there is a presumption that a natural person is a tax resident in Spain if, in accordance with the above criteria, the non-legally separated spouse and the individual’s dependent underaged children habitually reside in Spain.

Therefore, we consider that working abroad a couple of weeks or months per year would hardly lead to a change in the worker’s tax residence.

N/A