Recommended, mandatory … What are the exact rules for teleworking?

In the midst of the second wave of coronavirus, the government is toughening up its tone on the use of telework. ” It is an obligation (…) If all your tasks can be done remotely, you must be teleworking five days out of five, ”said on Tuesday, on Europe 1, the Minister of Labor, Elisabeth Borne.

However, the executive has long tackled this subject. At the beginning of September, the same Elisabeth Borne simply spoke of an “organized” implementation. At the end of September, she spoke of teleworking “highly recommended”, but still not compulsory, because “the rules in companies are very protective”. In mid-October, as the epidemic grew, it was Emmanuel Macron himself who advocated only “two to three days of teleworking per week”, explaining that the practice could “isolate people”. It was not until the end of October, with the implementation of the new confinement at least until the beginning of December, that the executive resolved to speak of “compulsory” teleworking. 20 Minutes takes stock of the rules in force.

What are the current rules on teleworking?

Despite the state of health emergency, no law directly requires an employer to set up teleworking. “This law could represent a disproportionate attack on the freedom to undertake or work and would therefore risk being censored by the Constitutional Council” indicated last month to 20 Minutes Laurent Parras, lawyer in labor law.

For the general framework, it is therefore necessary to refer to article L 1222-11 of the Labor Code. It provides that “in the event of exceptional circumstances, in particular the threat of an epidemic (…), the implementation of teleworking can be considered as an adaptation of the workstation made necessary to allow the continuity of the activity of the company and guarantee the protection of employees ”. In addition to this legal basis, a national protocol “to ensure the health and safety of employees” was published by the Ministry of Labor.

This protocol takes up the legal argument of the Labor Code and indicates that “in the current exceptional circumstances, linked to the threat of the epidemic, [le télétravail] must be the rule for all the activities which allow it (…) the working time carried out in teleworking is increased to 100% for the employees who can perform all their tasks remotely. “

This obligation can have an impact on business expenses. Indeed, contrary to what the Ministry of Labor asserts on its site, the employer is legally bound to reimburse professional expenses related to teleworking: ink cartridges, paper, but also additional electricity costs, or even a part rent if part of the accommodation is dedicated to teleworking. Urssaf has published a guide on the subject. In practice, many companies refuse this support, and the employees do not dare to claim or take legal action.

Are employers who deviate from the protocol outlawed?

Yes and no. Not being a text of law strictly speaking, the protocol has no binding legal value. This is in substance what the order of 19 October 2020 of the Council of State indicates. Seized by an employers’ union which requested its suspension, the Council of State indicates that the protocol is “a set of recommendations”.

But he immediately specifies that these recommendations are “the material variation of the employer’s safety obligation”. Each company is in fact legally responsible for the health and safety of its employees. “This safety obligation requires the employer to review, in view of the risks and modes of contamination induced by the covid-19 virus, the organization of work, flow management, working conditions and employee protection ”continues the Council of State.

In other words, “if the protocol cannot be used, as such, for labor inspectors as the basis for a report, it can be hung up on the articles of the Labor Code relating to risk prevention” indicates on its site Benjamin Louzier, associate lawyer at RedLink. He continues: “the companies which decide to ignore the sanitary protocol or to apply it only” softly “take the risk of a legal action taken in summary by the unions in order to suspend the activity on site while waiting that preventive measures have been taken ”.

The CFDT delivers a similar legal analysis: “ [le protocole] nevertheless has a binding force, certainly indirect (…). Even though these are only recommendations, the employer is strongly encouraged to follow them if he wants to avoid any criminal or civil conviction ”. For example in the event that contaminations occur in a company even though employees could telework.

How will the Ministry of Labor monitor the correct application of these rules?

On October 26, Elisabeth Borne indicated that there had been “55,000 interventions” by the labor inspectorate since the deconfinement in May, having resulted in “300 formal notices” addressed to companies that did not (or little ) the protocol. On Tuesday, she announced on Europe 1 that an investigation would be set up “at the end of the week”. “The 1,980 labor inspection control officers will support companies in the implementation of the national protocol (…) It is up to the employer to determine the tasks that can be performed by teleworking and to organize themselves in consequence ”specifies a press release from the Ministry of Labor published on Tuesday.

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