On March 16, President Macron declared that France was in a "health war" and announced the prohibition of any movement that is not justified by one of the reasons exhaustively listed by decree (decree n ° 2020-260 of March 16 2020 and decree n ° 2020-293 of March 23, 2020).
On the same day, the Ministry of Labor stated in a press release, that work was "the imperative rule for all the positions which allow it".
However, this form of work organization, which is still not very widespread in French companies (according to DARES, only 7% of employees were teleworking in 2019: https://travail-emploi.gouv.fr/actualites/presse/communiques-de-presse/article/coronavirus-covid-19-et-monde-du-travail), raises many questions to which the present article will try to provide clear and concrete answers.
1) What is telework (télétravail) ?
Teleworking is defined by Article L. 1222-9 of the Labor Code as “any form of work organization in which work which could also have been performed on the employer's premises is carried out by an employee outside of these premises on a voluntary basis using information and communication technologies ”.
It can be regular or occasional, take several forms and exercise in different places.
It thus covers a multitude of different situations, ranging from the employee who benefits from a working day at home to the one who punctually uses information and communication technologies (sending email, conference calls, etc.) during his movements.
2) In which cases is teleworking compulsory?
In principle, teleworking must be the subject of an agreement between the employee and his employer. (Article L.1222-9 of the Labor Code)
However, “in exceptional circumstances, in particular the threat of an epidemic or in the event of force majeure, the implementation of telework can be considered as an arrangement of the work station made necessary to allow the continuity of the activity of the and guarantee the protection of employees. "(Article L.1222-11 of the Labor Code)
However, in the context of the fight against Covid-19, teleworking has become the rule and is imposed on both the employer and the employee as soon as the position concerned allows it.
Indeed, if the aforementioned decrees of March 16 and 23, 2020 authorize travel between home and work and professional travel which cannot be postponed without more precision, the press release from the Ministry of Labor is much more restrictive since he specifies that it is "imperative that all employees who can telework use telework until further notice".
The derogatory travel authorization posted online on the government website also covers travel between home and the place of professional practice when it is essential for the exercise of activities that cannot be organized in the form of telework. and business trips cannot be postponed. https://www.interieur.gouv.fr/Actualites/L-actu-du-Ministere/Attestation-de-deplacement-derogatoire-et-justificatif-de-deplacement-professionnel
Telework is therefore excluded only in cases where the job performed by the employee cannot be organized in this form.
Otherwise, it is strictly mandatory to use it.
In this regard, according to the Ministry of Labor, almost 8 million jobs (or more than 4 jobs out of 10 in the private sector) are now compatible with teleworking so that it should find '' apply for a very large number of employees.
3) How should my working time be organized?
With regard to teleworking, a distinction must be made between working hours on the one hand and the employee's time slots on the other.
3.1) The employer must enforce the maximum hours of work and rest
Regarding working hours, although the rules for counting working hours are more difficult to implement when the employee is at home, the employer remains responsible for controlling the working time of his employees. (Decree of May 30, 2006 extending the national interprofessional agreement relating to telework: https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000640310&categorieLien=id)
Indeed, telework does not exempt the employer from ensuring compliance with maximum working hours and rest periods.
It is therefore up to him to set up a reliable system for counting working hours (self-declaration system, system for monitoring connection times on the computer, etc.); even if the employee freely manages his working hours.
Similarly, if the employee works overtime, it must be paid to him.
The workload entrusted to the worker must moreover be comparable to that applicable when the work is carried out on the premises of the company (article 9 of the national interprofessional agreement of July 19, 2005 relating to teleworking).
For employees on a day pass, the employer must always ensure compliance with the minimum daily rest of 11 hours and the weekly rest of 35 hours minimum as well as the maximum durations.
3.2) Availability time slots during which the employee must be reachable
Contrary to the work carried out within the premises of the company, teleworking supposes the fixing of time slots on which the employee must be reachable.
As a result, the employee, who freely manages his working time, is not forced to be permanently available in case his employer wants to join him.
Outside these hours, he cannot be penalized for not having replied to his employer. (Cass. Soc., 17 Feb 2004, n ° 01-45889)
4) Must my employer provide me with equipment and / or cover my equipment costs?
In principle, it is up to the employer, who is responsible for paying the professional costs incurred by his employees, to bear the costs induced by teleworking.
Thus, the rule is that the employer will bear part of the costs of heating, electricity, internet, telephone, etc. as well as the acquisition of the material necessary for the performance of the work, if it is not provided by the company.
This can be done by paying a flat-rate allowance covering all of the telecommuting costs or by reimbursing the invoice.
However, it remains to be seen whether this rule will be maintained in the context of the telework imposed for the fight against the spread of the Covid-19 virus or whether it will be adapted to take account of the particularity of this situation.
5) Do I have the right to compensation for occupying my home?
In principle, the employee who works at his home must be compensated for this particular hardship as soon as no professional premises are made available to him by the company (Cass. Soc., 4 Dec. 2013, n ° 12- 19.667, n ° 2092 FS - P + B Cass. Soc., Sep 21, 2016, n ° 15-11.144 Cass. Soc., March 27, 2019, n ° 17-21.014, n ° 534 FS - P + B).
This so-called "occupancy" allowance is in addition to the reimbursement of costs incurred by the professional occupation of the home (electricity, heating, internet, etc.).
In our opinion, it is not due to the employees placed in teleworking within the framework of the rules against Covid-19.
Indeed, according to case law, the right to this occupancy allowance depends on whether the occupation of the employee's private home in the context of teleworking is imposed by the absence of work premises made available by the employer.
6) What happens if I have an accident at my home while I was teleworking?
When the employee is the victim of an accident while he is teleworking, this accident must in principle be considered as an accident at work as soon as it occurred occasionally or as a result of work. (Article 411-1 of the Social Security Code)
The accident must, as such, be the subject of a declaration by the employee to his employer by registered letter with acknowledgment of receipt within 48 hours of its occurrence.
However, proof of professional character (accident du travail) is much more difficult.
The presumption of the professional nature of the accident applies according to the rules of ordinary law to the teleworker as soon as it has occurred at the place and time of work. (Article L.1222-9 of the Labor Code)
The whole difficulty therefore lies in proving the occurrence of the accident during working time.
Failing to demonstrate that the accident occurred at the home of the teleworker during his working time, he will be deprived of the benefit of the presumption and will have to prove the causal link between the accident and his work. (Circular letter DSS-SDFATH / B4 n ° 98-161 R, 7 July 1998: BJ Uncanss 41-98)
7) How to do when my job is not workable in teleworking?
7.1) The employer must enforce barrier gestures (gestes barriers) and social distancing rules (règles de distanciation sociale)
When employment is not eligible for teleworking, the employer must guarantee for its employees that barrier gestures and rules of social distancing are strictly observed in the workplace.
In this regard, the Ministry of Labor invites companies to adapt the organization of work so as to limit groupings as much as possible, in particular by implementing staggered hours.
In this regard, it should be recalled that the employer is bound by an obligation of security of result with regard to all his employees and that he must therefore implement all the measures necessary to protect their health and their security. (Article L. 4121-1 of the Labor Code)
7.2) Otherwise, the employee's right of withdrawal (droit de retrait)
If this were not the case, the employee would be entitled to exercise his right of withdrawal. (cf. COVID-19 The point on the right of withdrawal of employees https://www.village-justice.com/articles/covid-point-sur-droit-retrait-d...).
7.3) Right of alert of the CSE (Comité d’entreprise ou Comité Social et Economique) in application of article L. 4131-2 and L. 4132-2
In the event of non-compliance with barrier gestures and rules of social distancing which would endanger employees, the CSE can exercise its right of alert.
Article L4131-2 of the Labor Code provides that: "The staff representative on the social and economic committee, who finds that there is a cause of serious and imminent danger, in particular through the intermediary of a worker, immediately alert the employer according to the procedure provided for in the first paragraph of article L. 4132-2. "
However, given its urgency, the alert does not need to result from a collective decision of the CSE, it can be issued by a member of the CSE individually.
To do this, he must not only immediately notify the employer, but also record this opinion in a special register, the notice must contain the following information:
- The indication of the workstation (s) concerned;
- The names of the employees concerned;
- The nature of the danger and its cause. (Article D. 4132-1 of the labor code)
This immediately triggers the employer's obligation to investigate with the CSE member who reported the alert, and to take the necessary steps to put an end to the danger. (Article L.4132-2 of the Labor Code)
7.4) The special case of parents of children under the age of 16 who have no childcare solution
Concerning the parents of children under 16 whose employment cannot be carried out by telework and who do not have a childcare solution, they can request a sick leave compensated by health insurance. without waiting period. (Decree No. 2020-73 of January 31, 2020 adopting adapted conditions for the benefit of cash benefits for people exposed to the coronavirus: https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000041513432&categorieLien=cid)
The employer cannot then refuse this work stoppage.
8) What should I do if my employer refuses to telework (télétravail) ?
When the job is achievable in telework, even partially, and the employer refuses it, the only solution remains the exercise of your right of withdrawal in application of article L. 4131-1 of the labor code (cf. COVID-19 Update on employees' right of withdrawal https://www.village-justice.com/articles/covid-point-sur-droit-retrait-des-salaries,34403.html).
. Certificate of derogatory travel (decree of 23 March 2020)
. Article L. 4131-1 of the labor code on the right of withdrawal of the employee https://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle=LEGIARTI000006903155&cidTexte=LEGITEXT000006072050&dateTexte=20080501
. Decree 2020-260 of March 16, 2020
. Decree 2020-293 of March 23, 2020
. Order of May 30, 2006, extending the national interprofessional agreement relating to telework: https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000640310&categorieLien=id)
. Decree n ° 2020-73 dated 31 January 2020 adopting suitable conditions for the benefit of cash benefits for people exposed to the coronavirus:
Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
Marilou OLLIVIER avocat
CHHUM AVOCATS (Paris, Nantes, Lille)
.Paris: 4 rue Bayard 75008 Paris tel: 0142560300
.Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644
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