TELEWORK. Labor Minister Elisabeth Borne said she wanted to strengthen teleworking to counter the new wave of Covid-19. What are the rules, the recommendations for the start of the January 2022 school year? We take stock.
[Mis à jour le 22 décembre 2021 à 16h37] Will the after-festivities and the start of the January 2022 school year be marked by a new massive use of telework? The Minister of Labor, Employment and Integration Elisabeth Borne launched an appeal this Wednesday, December 22 to microphone from Europe 1. Two weeks after announcing the holding of new checks in companies to set a “target of two to three days of teleworking”, the minister seems to want to accelerate, faced with the increase in contaminations and the arrival of the Omicron variant on the ground French.
Deeming to be essential the reinforcement of teleworking at the start of the school year on January 3, she now mentions “a target of three days minimum for positions which allow it, or even four days when possible”, before adding: “It is clear that with the situation, it is necessary to accelerate, to reinforce teleworking “. However, the government does not comment on the issue of new binding measures to encourage companies to set up teleworking, ensuring that checks are carried out, up to “5,000 checks per month”. On LCI on December 7, Elisabeth Borne was already calling for “social dialogue within each company”.
The latest version of the Covid protocol in companies on teleworking, available on the website of the Ministère du Travail, de l’Emploi et de l’Insertion, dated December 8, 2021. It has been applicable since that date. He 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: staggered schedules; flow of circulation; setting up of teleworking etc.) “. The ministry’s justification is as follows: “Teleworking is a mode of organization of the company which can participate in the process of prevention of the risk of infection with SARS-CoV-2 and make it possible to limit social interactions around places of work and on journeys home to work. ” Finally, this protocol indicates the modalities of the implementation of teleworking in the company: “The national interprofessional agreement (ANI) of November 26, 2020 for a successful implementation of teleworking constitutes a useful reference framework for its implementation. As such, employers set, within the framework of local social dialogue, the modalities for using this mode of work organization by ensuring that links are maintained within the work group and the prevention of risks associated with the isolation of teleworking employees “. For its part, the government specifies, on its site, that, “whenever possible, 2 to 3 days of teleworking will be recommended per week”. The government reserves the right to change this incentive towards an obligation: “If this objective is not reached, obligations may be considered in the future”.
On his site, the government specifies, on December 6, 2021, that, in the public service, three days of telework are targeted.
Can teleworking become an obligation for companies? During the successive confinements and other measures taken throughout the Covid-19 epidemic, the government has never included any text on teleworking in the law. Strictly speaking, it never became compulsory. As the Council of State indicated in an opinion dated October 19, the anti-Covid protocol has never had the force of law. In addition, neither the law nor the Labor Code has been amended with a view to re-containment. The “obligation” to telework had only been inscribed by the executive in “health protocols”, which are “a set of recommendations” without legal value. Thus, the labor inspectorate has little leverage to intervene if it has to deal with a company that does not wish to apply telework – at least, as long as the obligation of telework is not included in the Code du job.
Today, in addition to company protocol, it is the Labor Code which sets the rule for teleworking (Articles L1222-9 to L1222-11 of the French Labor Code). Whether occasional or regular, the latter must be decided via a “collective agreement” or “within the framework of a charter drawn up by the employer, after consulting the CSE”. In the absence of such agreement, the employee and the employer can 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 now completely refuse an employee’s teleworking request. In a document disseminated at the time of deconfinement, the Ministry of Labor nevertheless specified that this refusal must be “motivated”. “Since March 17 and until further notice, teleworking must be systematically privileged. The employer must therefore demonstrate that the presence in the workplace is essential for the functioning of the activity”, then indicated the file. The employer must also guarantee since the deconfinement that “the conditions of resumption of activity comply with health instructions” at the workplace. With the re-containment and the government’s now very clear discourse in favor of total teleworking, its responsibility in the event of refusal could be engaged.
If he can refuse teleworking, the employer also has the power to impose it on his employees. This is particularly possible, according to the Labor Code, in the event of “exceptional circumstances”. A motive 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 recourse to teleworking. And this without even the agreement of the employee.
In addition, article L4121-1 of the Labor Code requires the employer to take “the measures necessary 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 schedules, etc. If any shortcomings are observed, a formal notice may be imposed on the employer, who
is summoned to apply telework. If he does not, he risks a sanction.