TELEWORK. At the start of 2022, the executive announced the return of compulsory teleworking at least three days a week, if not four. Can the government really impose this measure on businesses?
The epidemic outbreak continues at the start of 2022 and, with it, the return of restrictive measures to try to contain as much as possible the circulation of Covid-19. Since Monday, January 3, in particular, teleworking in a company at least 3 days a week (4 when possible) has again been imposed by the executive. On its website, the government indicates other official instructions to avoid the transmission of the coronavirus within companies. Thus, face-to-face meetings should be limited as much as possible and be organized in strict compliance with barrier gestures where applicable. Lunches must now be separated by several meters between employees and ventilation of the rooms is also more than recommended. Companies must finally “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 allowing him to be absent during working hours “.
However, can the government really impose teleworking? According to the corporate 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, lawyer in labor law and partner at MBDA law firm. 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 make telework its employees”.
The Minister of Labor Elisabeth Borne however specified, when announcing the administrative fines for companies “resistant to the implementation of teleworking as provided for in the national protocol in companies”, that teleworking was imposed within the framework of the health obligation of employers towards their employees. It is therefore on this legal basis that companies could be constrained 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 “fixing the applicable framework of the provisions of the labor code” in the context of the epidemic which, in article 2, provides that “the Minister in charge of Labor may issue recommendations to employers for the assessment of risks and the determination of measures to ensure the protection of employees exposed to SARS-CoV-2 due to their professional activity “, further reports LCI.
Jean Castex himself announced it on December 27: for the time being, the obligation of teleworking is established until January 24. Projections by experts and health authorities suggest that at the end of January, the epidemic situation will be more favorable.
The government intends to force 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 controlled: “Currently, a company, which does not come back into conformity after a control, can have a penal sanction with very long procedural delays which are not dissuasive. But Faced with 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 company health protocol, at a rate of 5,000 per month against 1,000 in October “, indicates Elisabeth Borne.
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 traffic; 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 “.
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”. The employer must demonstrate that the presence in the workplace is essential for the operation of the activity “, then indicated the file. The employer must also guarantee since the deconfinement that” the conditions for resumption of activity comply with 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 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.