Chile: The Right to Disconnect Q&A

The “right to disconnect”, or the ability of workers to disconnect from work-related communications and activities outside their normal working hours, has become a pressing issue following the COVID-19 pandemic and the widespread shift to remote and flexible working. While some workers may appreciate the increased autonomy and flexibility that remote working offers, others may face challenges in maintaining a healthy work-life balance, managing expectations and boundaries, and avoiding burnout and stress.

There are various approaches to the right to disconnect across jurisdictions. For example, while some jurisdictions rely on codes of practice, others address the right to disconnect via legislation, or restrict the right to teleworkers/remote workers only.

With different jurisdictions adopting or considering various legal and policy responses to address the right to disconnect, the below provides an overview of the current position in Chile.

This Q&A is part of a series providing an overview of the current position and developments in 15 countries, highlighting the main challenges, opportunities, and best practices for employers and employees. This series includes contributions from Mayer Brown’s Employment & Benefits team and local counsel.

1. Is there a right to disconnect in your jurisdiction and, if so, when did it come into force?

Yes, this applies only to teleworkers (i.e., remote workers) who are not subject to working hours. They are entitled to at least 12 consecutive hours of disconnection between two working days. The right to disconnect entered into force in April 2020.

2. Is the right governed by legislation, a code of practice or both?

The right is governed by legislation - article 152 quarter J of the Labor Code.

3. Do all employees have a right to disconnect?

No, only teleworkers who are not subject to working hours have a right to disconnect.

4. Are all employers obliged to provide the right to disconnect?

No, only employers who have teleworkers that are not subject to working hours are obliged to provide the right to disconnect.

5. What are the obligations on the employer?

The employer should respect the fact that during the disconnection period, the employee is not required to respond to communications, instructions, or other requests from the employer.

6. What happens if an employer fails to comply with its obligations?

The employer may be fined by the Labor Authority, with the fine amounting to up to USD4,000. Additionally, it may be a factor to consider in relation to a claim by the employee of harassment, violation of their right to health and private life, or for a constructive discharge.

7. Have there been any reported cases on the right to disconnect?

Yes, several cases have been reported relating to the violation of the fundamental right to health and constructive discharge, highlighting the debate on whether simply failing to comply with the right to disconnect is enough to violate the right to health or lead to constructive dismissal. In this regard, case law has stated that the mere infringement of the right to disconnect is not enough to violate the right to health or to justify a constructive discharge, but its recurrence can serve as grounds for such violations or for a constructive discharge.

8. What are the benefits and challenges of the right to disconnect in practice?

One of the big challenges is to manage the right to disconnect effectively, as it depends on the employee communicating to the employer by any means when their disconnection time has begun, and there is no mandatory requirement with respect to the employees’ communication unless established in the employment contract.

One of the benefits is that it has raised awareness among companies that employees are permitted not to respond to work-related matters after working hours. It has also led some employers to take measures to comply with this right to disconnect, such as adding specific messages in email signatures regarding the right to disconnect.

9. Has the right to disconnect had a significant impact on the workplace since it came into force?

The right to disconnect entered into force during the pandemic, so in that moment it had an impact because employers were obliged to take measures to comply; for instance, incorporating into the signature footer the respect for recurring working hours in the companies. The right to disconnect highlighted the importance and necessity of disconnecting from work between work shifts.

10. Are there any changes on the horizon relating to the right to disconnect in your jurisdiction?

There are currently no proposals or changes on the horizon relating to the right to disconnect in Chile.

AUTHOR FROM PORZIO RIOS GARCIA ABOGADOS
Fernando Villalobos, Partner