Teleworking: rights and obligations of employers and employees

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Once again, telework is at the centre of the public debate. With the (re)lockdown, teleworking is becoming more and more important in companies, for all jobs that allow it. But what does the law say about telework? What are, for example, the obligations of companies towards their employees? And what rights can employees claim?

What legislation applies to teleworking ?

The advantages of teleworking for companies and their employees are well established: reduced travel time, more flexible working methods, increased autonomy and productivity…

To promote this virtuous way of working and to provide a framework for it, the government has increased the number of ordinances in recent years. The law for the reinforcement of social dialogue promulgated on 15 September 2017, has notably contributed to facilitating the implementation of telework within companies.

Today, articles L1222-9 to L1222-11 of the Labour Code set out the terms and conditions of telework.

How to set up teleworking in your company ?

The law for the reinforcement of social dialogue simplifies the implementation of telework.

From now on, an agreement expressed by the employee and the employee, in the form of their choice (oral, e-mail, letter…) is enough to set it up. Or as stated in article L1222-9 of the Labour Code: “when the employee and the employer agree to use teleworking, they formalise their agreement by any means.”

Another alternative: the collective agreement, if the company has one, which also makes it possible to specify the conditions of its exercise, specific to the company.

Finally, the employer can provide his teams with a dedicated charter. This charter must then set out the terms and conditions for the organisation of work in force in the company.

Under the Labour Code, it is therefore important for the company to specify :

  • The conditions for switching to telework, in particular in the event of a pollution episode mentioned in Article L. 223-1 of the Environment Code, and the conditions for returning to a work contract without teleworking;
  • Terms of acceptance by the employee of the conditions of implementation of telework;
  • Modalities of control of the working time or regulation of the workload;
  • Determination of the time slots during which the employer can usually contact the teleworking employee;
  • The modalities of access of disabled workers to a telework organisation, in application of the measures provided for in Article L. 5213-6.”

What are the employees’ rights?

The Labour Code is unambiguous: all the rights enjoyed by employees working in a face-to-face environment apply in all respects to teleworkers. In this case, teleworking employees enjoy the same salary benefits as face-to-face employees. For example, they are entitled to meal vouchers! They are also entitled to training, privacy, safety at work…

Moreover, teleworking is strongly encouraged whenever it is legitimate. An employer who refuses to grant telework to an employee whose position is eligible must justify the reason for his refusal with objective arguments.

Conversely, “the refusal to accept a teleworker’s position is not a reason for terminating the employment contract. Article L1222-9 of the Telework Law.

In other words, it is exclusively based on voluntary work. Except in exceptional circumstances, like the one we are experiencing today.

What are the employees’ obligations?

Once again, they are very similar to the obligations of employees working on site. Teleworkers are therefore subject to the same disciplinary sanctions if they do not fulfil the obligations set out in their employment contract.

What about accidents at work while teleworking?

Here again, the Labour Code protects employees. Any accident occurring at the place of telework is defined as a classic work accident. Article L. 411-1 of the Social Security Code.

What are the obligations of employers?

In addition to the obligations mentioned above, the employer must also ensure that :

  • Indicate to his teleworking employees “any restrictions on the use of computer equipment or tools or electronic communication services” (avoid using certain software for RGPD reasons for example). The employer must also specify the penalties to which the employee is exposed in case of non-compliance with these restrictions.
  • Offer as a priority to all teleworkers a position that would allow them to work on the company’s premises, linked of course to their job and skills.
  • Organise an annual interview to evaluate the employee’s working conditions and workload.
  • The Ministry of Labour website states that: “the employer is not obliged to pay his employee a telework allowance intended to reimburse him for the costs arising from telework. Unless the company has an agreement or a charter which provides for this”. However, the case law built around telework is used to defend employees. If certain expenses (internet, heating, electricity…) are incurred by an employee in the context of telework. And if they are justified to the employer, then they may justify reimbursement.

Teleworking and health crisis: what does the law say?

Exceptional circumstances call for exceptional measures! If, in normal circumstances, no employer can force an employee to telework, article L1222-11 of the Labour Code makes an exception. In cases of force majeure and exceptional circumstances (natural disasters, pandemics, etc.), it is stipulated that its implementation “may be considered as an adjustment of the workstation made necessary to allow the continuity of the company’s activity and guarantee the protection of employees”. In these specific cases, telework may be required without the employee’s prior agreement.

We also recommend our article on telework recruitment and onboarding.

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