The answers of two lawyers to your questions about teleworking

An advertising billboard in Paris.

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• The government repeats that “100% teleworking” is the rule during confinement.

• But the testimonies received by

  20 Minutes 

  show that this instruction is not applied everywhere.

• Two lawyers specializing in labor law answer Internet users' questions on this subject.

The government is working hard to promote teleworking during lockdown.

Since the end of October, the executive has been repeating that “100% teleworking” must be the rule for all positions whose tasks can be carried out remotely, in order to limit travel and the risk of coronavirus contamination.

The Minister of Labor, Elisabeth Borne, herself took charge of the recall last week, during a visit that we followed to the headquarters of several large companies.

Despite this broad communication, the numerous testimonials received by

show that teleworking sometimes has difficulty in establishing itself in companies, large or small.

Some readers often feel helpless when faced with an employer reluctant to let their teams work remotely, while others feel that their home is not at all suitable for telecommuting.

To take stock of what is possible (or not) to do, we contacted two lawyers specializing in labor law to answer your questions: Marion Guertault, associate lawyer at Hogan Lovells, and Sabrina Kemel, lawyer at FTMS cabinet.

Sébastien: “I am in a closed office of 20 m2 with three other people.

We have a laptop PC for teleworking and we asked to be able to use it a few days a week, which was refused by our manager.

Should we notify the labor inspectorate?

"

Marion Guertault: “The Ministry of Labor explains that the employer must justify the refusal of telework.

Keeping an employee in post must be justified by the impossibility of making him perform his tasks by teleworking.

If he can perform his tasks at home, he can have leverage with the labor inspectorate.

"

Sabrina Kemel: “He can notify the labor inspectorate.

Teleworking is not written into a law.

However, in view of the current circumstances, it is difficult for a company to force all its employees to come back in person every day… Completely banning telework today is quite risky for the employer.

He could be accused of failing to meet his safety and risk prevention obligations ”.

Régis, agent of a town hall: “Our administration does not follow the government recommendations on teleworking, is it legal? 

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Sabrina Kemel: “It's not illegal since teleworking is not in a law.

We come back to the employer's safety obligation: he must show that he has taken all the necessary measures to protect his employees.

Public and private employers are subject to the same obligations ”.

Cindy, employee of an association: “In the name of fairness, my director refuses teleworking to everyone because some positions, such as reception, cannot be done remotely.

Is this normal?

"

Marion Guertault: “No.

The government's guidelines are clear.

If tasks can be done remotely, they should be.

In the epidemic context, we are not going to reason in terms of equal treatment ”.

Sabrina Kemel: “It's abnormal.

The difference in treatment is, in this case, justified and objective.

To find a solution, the employee can contact the staff representatives and, secondly, the labor inspectorate, which can also be contacted by the unions.

Another possibility is the right of withdrawal, but it must be handled with care, since it is necessary to demonstrate a serious and imminent danger.

It should be used as a last resort.

And all the more so since employees are not paid when they exercise it, since the employer will consider, most of the time, that it is illegitimate.

".

Thomas: “Our employer gave us a travel certificate stating that our tasks could not be done by telework, which is false, since we teleworked without problem for three months in the spring.

What can I do ?

"

Sabrina Kemel: “It's not because we teleworked in the spring that we can telework today.

The tasks may be different.

We must also remember that the spring was a very strict containment, which is not the case today.

Companies seek to survive and some may consider that employees are less productive at home, that projects move less quickly from a distance.

In case of controls, employers will have to produce objective data to demonstrate the reasons why they need the employees on site.

In the event of proven breaches, the labor inspectorate may, after formal notice in particular, draw up a report which will be sent to the prosecution.

The prosecution will decide what action to take on this report ”

Christophe, technician in a hospital center: “My management refuses teleworking on the pretext that they have not written an agreement governing the practice.

Is it legal?

"

Marion Guertault: “In my opinion no, since given the exceptional circumstances, there is no obligation to formalize teleworking.

The employer cannot use this pretext ”.

Sabrina Kemel: “The fact of not having a convention or charter governing teleworking does not change anything, it is not a valid argument.

Teleworking can be done by simple agreement (example: by email).

In any case, at the moment, it can be imposed in view of the circumstances ”.

Sandrine: “What are the costs borne by the employer during teleworking?

"

Sabrina Kemel: “The employer is required to reimburse professional expenses on account.

For example, if you need a printer or ink cartridges, you make an expense report to be validated by the employer who will reimburse you.

For telephony or the Internet, this can be prorated or reimbursed via a telework allowance.

According to the scale established by Urssaf, for an employee working telework, a company can pay up to 50 euros per month for 5 days of telework per week (10 euros for one day, 20 euros for two days…).

This amount is exempt from social contributions without requiring proof.

When the amount paid by the employer exceeds these limits, exemption from social charges may be accepted provided that the actual expenditure can be proven.

"

François: “My accommodation is not suitable for teleworking.

I don't have a specific office or installation.

Can I refuse to telework?

"

Sabrina Kemel: “Yes, this is one of the reasons that can justify the physical return to the company, if your employer does not give you the means to adapt your accommodation.

Likewise, if your living conditions do not allow you to work from home (sick children, cohabitation with your spouse with whom you are in the process of divorce, etc.), then you can ask the employer to come to the site.

It is also necessary to take care of the psycho-social risks of the employees, in particular to burn-out and isolation.

Not all employees want to telecommute five days out of five!

".

Marion Guertault: “This is all the complexity of the current situation.

A priori, in exceptional circumstances, the employee cannot refuse, since teleworking is imposed on him.

The notion of volunteering disappears.

But we can also approach the issue from the point of view of employee health and safety.

If a home does not meet the requirements of a traditional workplace, this may justify an exemption from telework ”.

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