Preamble
A practice that has become ubiquitous in companies, especially since the Covid 19 crisis, teleworking offers a flexible and modern working environment to employees.
Teleworking can take different forms: regular or occasional, partial or total, from the moment of hiring or during the course of the contract. This is an opportunity to take stock of the possibilities of using teleworking.
1. What is teleworking?
Telework refers to any form of work organisation in which work that could also have been carried out on the employer’s premises is carried out by an employee outside these premises on a voluntary basis using information and communication technologies.
To put an employee on teleworking, the employer must ensure that the employee’s home is compliant, in particular the electrical installation, the connection to an internet network, etc. In addition, the employer provides, installs and maintains the equipment necessary for telework.
In principle, all employees are eligible for teleworking. However, for reasons related to certain activities (machine handling, teamwork, etc.) or related to the employee’s profile (seniority, need for supervision, etc.), access to teleworking is not open to all employees.
2. How is teleworking implemented?
Teleworking can be set up as part of a collective agreement or a charter drawn up by the employer.
The collective agreement or the charter on telework must provide in particular: the conditions for switching to telework, the terms and conditions for accepting the employee, the terms and conditions for controlling working time or the definition of time slots.
Legally, it is not necessary to provide for teleworking in the employment contract.
For occasional teleworking or in the absence of a charter or collective agreement providing for it, teleworking can be formalised by any means. The parties may agree on telework by amendment to the employment contract, email, text message, or by a simple verbal agreement.
In any case, the employer remains free to choose the means he wishes to use to implement teleworking. However, to avoid any potential dispute, it is advisable to frame the use of telework on a written medium countersigned by the parties.
3. What are the employer’s obligations?
3.1 Possibility of Employer Refusal
In the absence of a collective agreement or charter, the employer may, in principle, refuse any request to switch to teleworking without having to justify its refusal (unless it concerns a disabled worker).
3.2 Working Equipment
The collective agreement or charter may provide for the obligation for the employer to provide the tools and materials necessary for teleworking. In the absence of a collective agreement or charter, the employee can use his or her personal equipment.
The employer shall inform the employee of any restriction on the use of computer equipment or tools or electronic communication services. The information must warn the user of the sanctions in the event of non-compliance with these restrictions.
3.3 Annual Interview
The employer is required to organise an annual interview which relates in particular to the employee’s working conditions and workload.
4. What are the rights and obligations of the employee?
4.1 The status of the teleworking employee
The teleworker benefits from the same legal and contractual rights and benefits as employees in a comparable situation working on the company’s premises.
Indeed, they have access to training, privacy, and health and safety at work.
They must be identified as such on the single staff register.
4.2 Possibility of refusal to telework
The use of teleworking is always voluntary. Thus, the employee’s refusal will in no way constitute a reason for disciplinary action.
However, in the event of exceptional circumstances (threat of epidemic for example) or in the event of force majeure, teleworking may be imposed without the agreement of the employees.
These measures can be taken to allow the continuity of the activity and guarantee the protection of workers. The employer must inform the CSE of its decision.
4.3 Workplace Injury
An accident that occurs at the place where telework is carried out during the exercise of the teleworker’s activity is presumed to be an accident at work.
5. Who pays for the costs of teleworking?
- If it is the employee who is at the origin of the telework request:
The employer will only have to cover the costs arising directly from the exercise of telework, in particular the cost of hardware, software, subscriptions, communications and tools, as well as the maintenance of these.
- If it is the employer who initiated the request for telework:
The employer must compensate for the hardship constituted by the use of part of the employee’s home for the purposes of his or her professional activity. The amount of this hardship is not fixed by law. In principle, it depends on the time spent teleworking, the employee’s salary, the size of the part of the employee’s home reserved for teleworking, etc. In view of case law and doctrine, we advise to provide for an indemnity related to the occupation of the employee’s home.
The employer will also have to cover the costs resulting directly from the exercise of telework, in particular the cost of hardware, software, subscriptions, communications and tools, as well as the maintenance of these.
The costs incurred by the employee and related to teleworking can be covered by a lump sum allowance, or on an actual basis upon presentation of supporting documents, in accordance with the rules set by the tax authorities.
When the employee is in a situation of full teleworking, it is recommended to provide for the conditions of the employee’s compensation. Otherwise, the risk is that the employee will ask for a reminder of the expenses incurred by the employee, a reimbursement of the costs related to the occupation of his home, as well as additional damages.
NB: the employment law department can assist you in setting up the coverage of the costs and allowances related to the teleworking of your employees.
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This sheet contains summarized information. Please contact us for advice tailored to your situation. We cannot be held responsible for misinterpretation.
For information, our employment law department can assist you in drafting a company agreement for the split leave. Do not hesitate to contact to us.
Contact
Claire APPELGHEM
Hear of HR/Employment Law
Claire.appelghem@groupe-aplitec.com
01 40 40 38 38