Tag: remote working

The Implementation of Telework Law Framework

Posted on | by Paschalis Paschali
The implementation of the remote working law framework. Article by Irene Kattami, Senior Associate at Ioannides Demetriou LLC

The landscape of work has undergone significant transformation in recent years, which was particularly accelerated by the global pandemic. Teleworking has become increasingly common, prompting the need for a clear legislative framework to govern its implementation. This need has been addressed with the House of Representatives’ approval of a comprehensive framework regulating remote working. The Framework for Telework of 2023 Legislation (the “Law”), which came into effect on December 1, 2023, aims to establish guidelines and protections for both employers and employees navigating the remote work environment.

The Law stipulates that teleworking can be implemented under the following circumstances: (i) an optional teleworking scheme may be adopted subject to a written agreement entered into between the employer and the employee, (ii) mandatory teleworking may be imposed under a Decree issued by the Minister of Health due to public health considerations and (iii) mandatory teleworking may be required for an employee whose health is demonstrably at risk, which can be mitigated by refraining from working on the employer’s premises.

Apart from prescribing the conditions under which teleworking can be established, the Law also delineates the responsibilities that the employer bears towards the employee. Firstly, among these obligations is the coverage of expenses incurred by the employee related to teleworking. These expenses include various aspects, such as equipment costs (unless agreed to utilize the employer’s equipment), telecommunications, usage of the home workspace, and the maintenance and repair of equipment. Moreover, the employer bears the responsibility of ensuring that the employee receives the essential technical support required for their work. To further regulate the financial aspects, the Minister of Labour and Social Insurance is expected to issue a Decree specifying the minimum teleworking cost payable to the employee. Importantly, the Law stipulates that any expenses covered by employers will not be considered as part of the employee’s remuneration, but they are deemed as deductible expenses, exempted from both social insurance and taxation.

In maintaining consistency with the aforementioned responsibilities, the employer is obliged, among other things and in addition to those outlined in the Occupational Safety and Health Law 1996 to (i) have at their disposal a suitable and sufficient written risk assessment of the existing teleworking risks, (ii) determine the preventive and protective measures to be taken based on the written risk assessment, (iii) provide such information, instructions, and training to ensure the safety and health of their employees. Employers have the same health and safety responsibilities for employees, whether they work from home or in a workplace.

Furthermore, the Law requires that employers should provide certain information to employees regarding teleworking, within eight (8) days from the date of commencement of such arrangement. This information includes:
a) The employee’s right to disconnect;
b) An analysis of the extend of teleworking costs incurred by the employer;
c) The equipment necessary for the provision of services remotely and the procedures in place for the technical support, maintenance and repair of the equipment;
d) Any restrictions on the use of the equipment and any penalties in case of violation of the restrictions;
e) The agreement regarding remote readiness, it’s time limits and the response deadlines of the teleworking employee;
f) An evaluation of the risks associated with remote work and measures taken by the employer for their prevention based on the risk assessment;
g) The responsibility to protect and secure the professional and personal data of the teleworking employee and the relevant procedure to comply with such obligation;
h) The supervisor from whom the teleworker will receive instructions.

Any information which does not have to be personalised and addressed to teleworking employees, can be communicated to appropriate personnel through the employer’s internal policies.

Employees engaged in teleworking have the equivalent rights and obligations as their counterparts working on-site at the employer’s premises, including rights or obligations concerning their workload, assessment criteria and procedures, compensation, access to employer-related information, training, professional development, and where applicable trade union activity including their unhindered and confidential communication with trade union representatives.

A key protection established by the Law is the employees’ right to disconnect in order for the provisions of the Transparent and Predictable Working Conditions Law to be implemented. Employers and employees’ representatives are required to agree on the technical and organizational methods to ensure that remote employees can disconnect from electronic communication without any adverse consequences. If no such agreement is reached, employers must still notify employees of this right.
Moreover, the Law also sets out the duties and powers of Inspectors, who are officials of the Ministry and/or other public servants appointed by the Minister of Labour and Social Insurance. Their primary responsibility is to ensure the thorough and effective enforcement of the provisions of the Law. Failure to comply with the provisions of the Law could render employers liable, with potential fines upon conviction not exceeding €10.000.

In conclusion, the Framework for Telework of 2023 represents a significant step towards formalizing and protecting the evolving landscape of remote work. This legislation not only establishes clear guidelines and responsibilities for both employers and employees but also ensures a fair and supportive environment for teleworking. By addressing key aspects such as expense coverage, health and safety requirements, and the right to disconnect, the Law aims to create a balanced framework that promotes productivity while safeguarding employee well-being. As teleworking becomes an integral part of the modern work environment, the effective implementation and adherence to this framework will be crucial in fostering a sustainable and equitable remote working culture.

Digital nomads, international remote working and tax implications (Part II)

Posted on | by Paschalis Paschali

In the previous part, we briefly touched upon the type of tax issues that digital nomads (and/or their employers) might encounter. In this part, we review the legal position in Cyprus. We also review how some jurisdictions have dealt with some of the tax implications affecting international remote workers for non-resident companies and whether they gave rise to a permanent establishment.

So far, the Cyprus tax authorities have adopted a light touch approach. This is facilitated by the Cypriot legislation’s objective test for tax residency of individuals. As of 2017, an individual is a tax resident of Cyprus if it satisfies either the ‘183-day rule’ or the ‘60-day rule’ for the tax year. The 183-day rule is satisfied for individuals who spend more than 183 days in any one calendar year in Cyprus. The 60-day rule for Cyprus tax residency is satisfied for individuals who, cumulatively, in the relevant tax year do not reside in any other state for a period exceeding 183 days in aggregate, are not considered tax resident by any other state, reside in Cyprus for at least 60 days, and have other defined Cyprus ties.

During the COVID-19 pandemic, the Cyprus tax authorities followed the OECD’s non-binding guidance and as such, the presence of persons within Cyprus (or abroad) due to restrictions related to the pandemic were not taken into account when assessing the existence of a permanent establishment. Similarly, the tax residency of a foreign company or a non-resident individual were not affected by extended stays in Cyprus as a result of the pandemic. However, the provisions of this guidance are no longer relevant after the lifting of all restrictions. Therefore, the 183-day rule and the 60-day rule are to be strictly adhered.

For digital nomads working from their holiday home in Cyprus or from a temporary location, even if they do not meet the test for tax residency, they could still trigger a permanent establishment for their employer/company. For this, an assessment of all the facts needs to be made to determine whether the arrangement has sufficient permanency. Furthermore, Cyprus legislation and any underlying tax treaties between Cyprus and the state of the employer need to be reviewed.

It is useful to keep abreast of how other jurisdictions have dealt with some of the tax issues relating to digital nomads.

In 2022, the Spanish tax authorities issued guidelines and later on a binding ruling to confirm that individuals who stayed at home to work remotely during the COVID-19 pandemic were doing so by an extraordinary event. This was not at the employer’s request. The activity lacked a sufficient degree of permanency or continuity and as such, it did not create a permanent establishment for the employer.

Whether after the termination of the public health measures the home office in Spain would give rise to a permanent establishment in Spain, this depended on whether the home office was at the disposal of the foreign employer (in this case a UK employer).

In assessing this, a number of factors were taken into account, such as whether the activity previously performed by the employee changed after he moved to Spain, whether the move was for a purely personal decision, whether the employer had asked the employee to move to Spain for a specific business reason, whether the employer bore the costs of the move, whether the employer had an office in the UK which could be used by the employee etc.

In 2022, a number of rulings were given by the Danish tax authorities relating to international remote work. One ruling found that a CEO of two Norwegian companies who was working from home three days per week was a permanent establishment. By contrast, in another ruling, it was found that a managing director working from home due to personal reasons was not a permanent establishment. One important factor was that the director was not involved in sales-related activities taking place in Denmark. Similarly, a CFO working from home two days a week for a Swiss employer was not a permanent establishment for similar grounds. Although the CFO was also a member of the board of directors, this was not determinative as his functions primarily related to activities in Switzerland.

The Swedish tax authorities have also updated their guidance on remote working. According to the updated guidance, working from home due to government restrictions or force majeure cases (e.g. the COVID-19 pandemic) will not give rise to the existence of a permanent establishment. Similarly, if an employee works from home for personal reasons and this is not required or imposed by the foreign employer and there is no commercial interest for the foreign employer, then the employee’s home will not be considered to be at the disposal of the foreign employer and as such, will not give rise to a permanent establishment.

More recently, the Dutch tax authorities issued a ruling accepting that a foreign EU company did not have a Dutch permanent establishment as a result of having three employees who worked fully remotely from their home offices in the Netherlands. It was crucial that the home offices were not at the disposal of the employer. It was also important that the employees had no authority to bind the company, the foreign company was subject to tax where it was based and, very importantly, the employer offered an office but the employees preferred to work from home. This appears to be the first ruling involving multiple employees.

Of course, these rulings do not bind the tax authorities of other countries, including Cyprus, but they provide useful guidance. It would appear from some of the rulings issued so far that someone generating sales, or a management team or senior staff could give rise to a permanent establishment in Cyprus for the employer/company. For senior management or employees creating significant value for the employer, it is advisable to obtain a tax ruling from the Cyprus tax authorities before any international remote working arrangement is approved by the employer.

We can help you in this process and protect you and your employee from triggering any unexpected tax liabilities. Of course, given Cyprus’ very competitive tax regime and relatively low tax rates, it might be tax efficient to create a permanent establishment in Cyprus, or even transfer your tax residence. Currently, many incentives are offered by the Cypriot government for relocation to Cyprus, especially for non-domiciled individuals, which might make the change of tax residency a very appealing option. However, the transfer of tax residence, whether by an individual or a company needs to be carefully planned, in order to avoid creating dual tax residency. A relocation before you break your previous tax residency could give rise to double taxation of the employee’s worldwide income.

Our experienced lawyers can help you navigate this complex area whether you prefer to avoid the creation of taxable presence in Cyprus, or whether you wish to transfer your tax residency as an employer or that of your employees in Cyprus. We can assist you with all the technical formalities (e.g. registration as a local employer, maintaining payroll in Cyprus etc.) and we can help you obtain any necessary tax rulings from the tax authorities for a seamless transition.

For more information, please get in touch with us.