Teleworking: rights and duties of employers and employees

What do the legal texts say?

Teleworking is defined in article L1222-9 of the Labor Code.

It is about "any form of work organization in which work which could also have been carried out on the employer's premises is carried out by an employee outside these premises on a voluntary basis using information technologies. and communication ".

Three methods are planned for its implementation: collective agreement; charter; mutual agreement between employer and employee.

The national health protocol in companies recommends teleworking and is based on article L1222-11, which uses circulars from 2009 relating to the H1N1 influenza pandemic. The article stipulates that "in the event of exceptional circumstances, in particular the threat of an epidemic, or in the event of force majeure, the implementation of telework can be considered as a workstation adjustment made necessary to allow the continuity of the activity of the company and guarantee the protection of employees ".

This protocol, which should be updated again following the speech by the President of the Republic, presents teleworking as "a solution to be favored, when possible" and asks employers to set, within the framework of the social dialogue, "a minimum number of days of teleworking per week, for positions which allow it". It "must be favored by employers, at the request of those concerned" and "as far as possible, for workers who, without being themselves at risk of serious forms, live in the home of a person who is".

Can we refuse teleworking?

An employer who refuses to grant telework to an employee occupying an eligible position must justify his response. This refusal can be justified in a "fairly simple" way, says Emmanuelle Rivez-Domont, of Jones Day, in particular if teleworking is not established in the company; if the employer mentions a difficulty of organization or interaction with the team; or simply if he considers the position "not compatible".

But once granted, "it's complicated to go back, because you need the agreement of the employee", continues the lawyer.

On the employee side, the refusal to accept a teleworker position is not a reason for terminating the employment contract. However, given the "particular" health context, "the employer can and must impose it", explains Me Rivez-Domont.

How many employees affected?

At the end of September, 12% of employees were teleworking, according to the Ministry of Labor, against 17% in June, 25% in April, in full confinement.

The distribution varies according to the size of the companies, with 18% of employees on average over a week in those with 500 or more employees, 5% in those with 10 to 19 employees; and depending on the sector with for example 46% of employees teleworking in information and communication, 31% in financial activities, only 4% in accommodation and catering, private education, health, Social Action.

Nearly 8 million jobs (more than 4 out of 10 jobs) are now compatible with teleworking in the private sector, according to the ministry.

What will the negotiations starting on November 3 be used for?

The unions distinguish traditional teleworking from teleworking as practiced since March, which they describe as "working at home in degraded mode".

Judging the relatively light legal framework, they wish to discuss Tuesday with the employers, during a negotiation for a national inter-professional agreement (ANI): the workload, the assumption of costs directly related to telework, the disconnection , data protection, the issue of childcare when classes are closed, vulnerable people, gender equality, etc.

The employers, Medef in the lead, are not motivated for this negotiation, judging that there is a "corpus of perfectly applicable legal rules and standards". He wants the future agreement to be "neither normative", "nor prescriptive".

The last ANI dates from 2005, at a time when teleworking was at an experimental stage.

Unions like employers warn against discontinuous teleworking, evoking a break with the collective and psycho-social risks.