International telework agreement

Temporary work abroad, transnational posting and changing the habitual place of work are not synonymous. The purpose of the trip, beneficiary of the work, duration, frequency and connection with the employer must be analysed before approving the request.

An unlimited “work from anywhere” policy can create unplanned obligations. The company should use an approval procedure by country, duration and role, with a right to suspend when conditions change.

The parties may choose the applicable law, but that choice cannot deprive the employee of the protection of non-derogable rules that would apply without the choice. In the absence of a valid choice, the country in which or from which the employee habitually works is relevant.

A temporary period in another country does not automatically change the habitual place of work, but an established practice may change the analysis. The host country’s overriding mandatory provisions may become relevant regardless of the contract wording.

In the EU/EEA and Switzerland, coordination rules aim to make the person subject to one country’s legislation only. An A1 certificate may confirm the applicable legislation, but conditions differ for posting and activity in two or more countries.

Tax residence, taxation of salary and the risk of a taxable presence for the employer are checked separately under national laws and double-taxation treaties. For countries outside the area of free movement, the right to work and immigration must be analysed.

The contract or amendment must include the elements of telework and describe the international arrangement. The company also needs an internal tax, HR, occupational health and safety, privacy and security assessment.

• the approved country and address, duration and return date;
• working hours, time zone, time recording and availability;
• equipment, expenses, insurance and IT security;
• occupational health and safety, workplace accidents and access to the telework location within statutory limits;
• the employee’s obligation to provide accurate tax and immigration information;
• the right to withdraw approval and the return plan.