Official Explanatory Note to the Newly Introduced Remote Work Regulations and the Right to Disconnect (Thailand)

2. Remote Work and Disconnection under the Amendment

The Amendment added Section 23/1 to establish the principles in respect of remote work by employees and the right to disconnect. An unofficial translation is as follows:

The key takeaways are as follows:

 1. The Amendment does not mandate that the employer makes arrangements for remote work for the employee. Rather, it is an employment option for both the employer and employee. For example:

• Work that is suitable for remote work: accounting, drafting or documentation.
• Work that is not suitable for remote work or that cannot be performed remotely: manufacturing, warehousing or machinery-related tasks.

 2. If the employer and the employee would like to enter into a remote work arrangement, they must enter into an agreement that permits the employee to perform the work at their home or residence or that enables the employee to work remotely from any location through the use of technology.

 3. An agreement on remote work can be executed at any time, either at the beginning of the employment together with the master employment agreement or during the employment as a separate agreement or upon the request of a union under labor relation laws. However, it must be documented in writing or in an electronic file format and may contain the following details:

Moreover, the agreement may contain additional conditions apart from the five items above, e.g., the requirement that a video camera be turned on during the working hours or the conditions for the employee to travel outside their home during the working hours.

 4. At the end of the normal working hours or assigned work, the employee shall have the “right to disconnect” from the employer, including their supervisor, controller or inspector. However, if the employer requires the employee to remain available for communication, a written consent from the employee must be obtained in advance.

According to the Explanatory Note, this provision shall prevent the employer from punishing the employee if the employee disconnects after normal working hours. However, even if the employee waives their right to disconnect, the employer would still be obligated to obtain the employee's consent for overtime work and to provide overtime pay as required by the LPA if the employer contacts the employee to perform the work.

 5. If the employee works remotely from their home or any other location, the employee shall have the same rights as an employee working in the employer's physical workplace or office.

3. Penalty

The Amendment does not stipulate any punishment for any violation thereof. However, according to the Explanatory Note, if the employer fails to comply with the Amendment, such as by treating the remote employee unfairly compared to an on-site employee, a labor inspector may issue a written order requiring the employer to comply with the law under Section 139 (3) of the LPA. If the employer fails to comply with the labor inspector's order, they may be punished with a fine not exceeding THB 20,000 under Section 146 of the LPA.

4. Remarks

As Section 23/1 is a newly added provision, there are currently no precedents regarding its implementation. Further, regarding this new law, several practical points remain unclear and require clarification. These include:

 1. If there are a substantial number of employees, instead of entering into an agreement with each employee, would it be permissible for the employer to unilaterally prescribe and announce a remote work policy that is enforceable on all employees without their explicit consent?

 2. Would it be permissible for the employer to seek implied waivers in respect of the right to disconnect?

It is worth noting that, although the principles in Section 23/1 are similar to those of the Homeworkers Protection Act of 2010 and the Ministerial Regulation Concerning the Protection of Employees in Home-Based Work of 2004 issued under the LPA, the latter two conceptually focus on local enterprise workers who are paid on a per-piece basis. Therefore, employers with remote employees should verify the laws that are applicable to their particular cases.

5. Conclusion

The Amendment aims to improve the quality of life of employees and promote new ways of working in response to the current situation. However, in relation to the application of the Amendment, it will be necessary to wait for precedent cases and guidelines to clarify several practical points that remain unclear as this is a new law.

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