TELEWORK. The end of compulsory teleworking as part of the schedule for easing restrictions in the face of the Covid-19 epidemic was announced on Thursday January 20, 2022 by Prime Minister Jean Castex. What will the new rules be, when will they take effect? We tell you everything.
[Mis à jour le 21 janvier 2022 à 10h22] It is soon the end of compulsory teleworking in companies. It will be February 2, 2022. Prime Minister Jean Castex unveiled on Thursday January 20, 2022 the timetable for lifting a number of restrictions taken at the start of the year in the face of the outbreak of Covid-19 contamination and the emergence of the Omicron variant. Among them, the incentive to telework at least 3 days a week (4 even when possible) had been announced, as well as the strengthening of controls which could lead to larger fines than before.
From February 2, no more obligation but a simple “recommendation” to keep it. Jean Castex thus entrusted “companies with the task of maintaining the right level within the framework of their internal social dialogue”. Will the end of compulsory teleworking be accompanied by an evolution of the health protocol in companies? Nothing has filtered for the moment on this point.
On its website, the government had previously indicated that, to avoid the transmission of the coronavirus within companies, face-to-face meetings should be limited as much as possible and be organized in strict compliance with barrier gestures if necessary. Lunches now had to be a distance of several meters between employees and the ventilation of the rooms is also more than recommended. Finally, companies had to “inform the employee of the existence of the application AllAntiCovid and the interest of its activation during working hours” and “to facilitate the vaccination of the employee by authorizing him to be absent during working hours”.
The date has changed. If Jean Castex had himself announced on December 27 the obligation of teleworking until January 24, the Prime Minister gave an end date of January 20, 2022 during a new press conference: the end of compulsory telework will be February 2, 2022.
The government intends to compel companies with these sanctions in the event of non-compliance with health instructions. Any employer who does not comply with the rules is liable to an administrative fine of 1,000 euros per employee, up to a limit of 50,000 euros per company. With of the Parisian, the Minister of Labor indicated that the employers would be checked: “Currently, a company which does not return to compliance after a check may have a criminal sanction with very long procedural delays which are not dissuasive. But given the urgency of the virus, which is more contagious, we want to put in place faster administrative sanctions. Due to the increase in contamination, I have asked for an increase in company checks on compliance with the health protocol in the company, at a rate of 5000 per month against 1000 in October”, indicates Elisabeth Borne.
But can the government really impose teleworking? According to the company health protocol, which governs the practice of teleworking in the context of the Covid-19 epidemic, it is up to employers to set, in reality, the conditions of remote work. This text, as well as the various protocols which have followed one another since the start of the pandemic, have no legal significance, assured LCI Me Corinne Metzger, labor lawyer and partner at MBDA. The lawyer even specifies that these are only “simple recommendations” from the executive to companies. And to recall that the obligation of teleworking does not appear in the law: “There is no text which obliges the employer to have his employees telework”.
The Minister of Labor Elisabeth Borne however specified, when announcing the administrative fines to companies “refractory to the implementation of teleworking as provided for in the national protocol in companies”, that teleworking was imposed within the framework of the health obligations of employers towards their employees. It is therefore on this legal basis that companies could be forced in the event of non-compliance with teleworking three days a week. Another text playing in favor of the government: the decree of July 16, 2021 “setting the applicable framework of the provisions of the labor code” in the context of the epidemic which, in its article 2, provides that “the Minister in charge of Labor may issue recommendations for employers for the assessment of risks and the determination of measures aimed at ensuring the protection of employees exposed to SARS-CoV-2 as a result of their professional activity”, reports again LCI.
The latest version of the Covid protocol in companies on teleworking, available on the website of the Ministry of Labour, Employment and Integration, dated December 8, 2021. It has been applicable since that date. It recommends “the organization of an exchange within the framework of local social dialogue on the implementation or strengthening of health measures within the company is all the more essential (eg: staggering of hours; flow of traffic; implementation of teleworking, etc.)”. The ministry’s justification is as follows: “Telework is a mode of organization of the company which can participate in the process of preventing the risk of infection with SARS-CoV-2 and make it possible to limit social interactions around places of work and on home-work journeys. Finally, this protocol indicates the procedures for setting up teleworking in the company: “The national interprofessional agreement (ANI) of November 26, 2020 for the successful implementation of teleworking constitutes a useful reference framework for its implementation. In this respect, employers set, within the framework of local social dialogue, the procedures for using this method of organizing work, ensuring that links are maintained within the work collective and the prevention of risks related to the isolation of employees working from home”.
Today, in addition to company protocol, it is the Labor Code that sets the rules for teleworking (articles L1222-9 to L1222-11 of the Labor Code). Whether occasional or regular, the latter must be decided via a “collective agreement” or “as part of a charter drawn up by the employer, after consulting the CSE”. In the absence of such an agreement, the employee and the employer may formalize an agreement by any means. The employer can refuse to grant teleworking to an employee but must justify his response.
An employer can therefore today completely refuse a request for telework from an employee. In a document broadcast at the time of the dieconfinement, the Ministry of Labor nevertheless specified that this refusal must be “motivated”. The employer must demonstrate that presence in the workplace is essential for the operation of the activity”, then indicated the sheet. The employer must also guarantee since the deconfinement that “the conditions for resuming activity comply with the health instructions” in the workplace.
The employer can impose it on his employees. This is particularly possible, according to the Labor Code, in the event of “exceptional circumstances”. A reason that can easily be invoked for the coronavirus and containment. Article L. 1222-11 of the Labor Code also explicitly mentions the “epidemic risk” among the reasons that may justify the use of telework. And this without even the consent of the employee.
In addition, article L4121-1 of the Labor Code requires the employer to take “the necessary measures to protect the health of its employees
”. This can involve teleworking, the provision of masks and gel, the closure of the cafeteria, a shift in working hours, etc. formal notice may be imposed on the employer, who
is called upon to apply teleworking. If he does not, he risks a penalty.