Telework, a mode of organization increasingly favored by employees, has been reshaped by the Macron Ordinances of September 22, 2017.
Due to the health crisis, companies were forced to make extensive use of telework in the exceptional circumstances dictated by the Covid-19 pandemic. Since this experience, many employees want to telework more regularly than before and many companies are considering a wider implementation of this work organization.
It is in this context that the social partners met and developed the National Inter professional Agreement of November 26, 2020 for a successful implementation of telework. This agreement, which is not binding for employers, is presented as a reference for companies to remind them of the law and to provide operational solutions for the implementation of telework within their structure.
1/ What is telework? ?
1.1 Definition of telework
Article L.1222-9 of the French Labour Code defines telework as « any form of work organization in which work that could also have been performed on the employer’s premises is performed by an employee outside these premises on a voluntary basis using information and communication technologies ».
Telework is characterized by :
- The voluntary nature of this mode of work ;
- The performance of work at the employee’s home, i.e. his usual place of residence, as declared to the Human Resources Department ;
- The use of information and communication technologies.
Telework can be regular, occasional in order to respond to specific situations (For instance : recommendation of the occupational physician, family or personal constraints of the employee such as the illness of a relative or the occurrence of an exceptional event such as a transport strikes) or in case of exceptional circumstances or force majeure.
1.2 Voluntary nature of telework
The implementation of telework is based on a double voluntary approach of the employee and the employer. The employer can therefore accept or refuse a request from the employee if he/she does not meet the conditions set for telework. The employee can also refuse to telework, which cannot be imposed on him/her, as the refusal is not a reason to terminate the employment contract.
Exception : in case of exceptional circumstances (threat of pandemic, force majeure), the implementation of telework can be considered as an adaptation of the workstation made necessary to allow the continuity of the company’s activity, and to guarantee the protection of the employees (art. L.1222-11 of the French Labor Code). In this case, the decision falls under the employer’s unilateral management power.
Can your employees demand to benefit from telework ? In principle, if the employee fulfils the eligibility conditions set by the collective agreement or the internal charter, the employer can hardly refuse to telework, as this refusal must be motivated. For this reason, it is again in your interest to frame the use of telework as precisely as possible in the collective agreement or in the internal charter in order to limit discussions and disputes. For example, the agreement or the charter can provide for a minimum seniority, exclude beneficiaries of short term contracts, reserve telework to certain types of work.
2/ Setting up telework
2.1 How can the implementation of telework be an asset for the company ?
Telework can be a criterion and an asset to reinforce the attractiveness of the company faced with recurrent recruitment difficulties, and a tool for retaining employees, especially in certain employment areas.
2.2 Implementation by collective agreement or charter
Originally, the social partners had favoured the introduction of telework by contract. The terms and conditions of telework had to be specified in the employment contract or in a rider to it. This mandatory contractualization was abolished in 2017.
From now, Article L.1222-9 of the Labor Code provides that « Telework is implemented within the framework of a collective agreement or, failing that, within the framework of a charter drawn up by the employer after consulting the social and economic committee, if it exists. In the absence of a collective agreement or charter, when the employee and the employer agree to use telework, they formalize their agreement by any means ».
This document is used to set the framework for the use of telework in the company: :
- Which employees can benefit from it ? It is indeed the employer’s responsibility to identify the activities of the company that can be teleworked and he is responsible for this. The drafting of the collective agreement or the charter therefore requires a real preliminary study of the company’s workstations to determine an appropriate work organization and to ensure in particular that all employees can work in safety.
- How can the employee’s work, working time and workload be monitored? This support is also an opportunity to discuss the implementation of the right to disconnect.
- How to put an end to it? Possibility to foresee an adaptation period during which each party can put an end to this form of work organization by respecting a notice period.
- What form should the employee’s request and the employer’s agreement take? It is advisable to foresee the conditions and modalities of mobilization of telework in case of exceptional circumstances or force majeure.
We would like to draw your attention to the fact that periodic collective bargaining in the company, in particular that relating to the quality of life at work, or the negotiation relating to the right to disconnect, as provided for by the Labor Code, can enable dialogue to be initiated in companies with trade union delegates with a view to reaching a collective agreement on telework.
We remind you that, in general, the CSE must be consulted on « the employer’s decisions relating to the organization of work which have an impact on the general running of the company », which includes, in particular, the conditions of implementation and the scope of telework.
2.3 Implementation by agreement between the employer and the employee
Article L.1222-9 of the Labor Code states that « In the absence of a collective agreement or charter, when the employee and the employer agree to use telework, they formalize their agreement by any means ».
Whether it is regular or occasional, telework can now also be set up by a simple agreement between the employer and the employee, which can be formalized by any means. Of course, I recommend that you use a tool that allows you to establish a means of proof. A simple exchange of e-mails could be sufficient. Even if the French Labor Code no longer imposes mandatory content, it is recommended that the employer and the employee agree on a certain number of conditions (monitoring procedures, time slots, use of work tools, etc.).
In this respect, the ANI of November 26, 2020 recommends that the employer informs the employee in writing of the conditions of mobilization and implementation of telework, specifying in particular :
- the existing collective framework (agreement, charter), if any ;
- the practice of telework such as the hierarchical attachment, the modalities of evaluation, of the workload, reporting and liaison with the company ;
- the modalities of articulation between telework and face-to-face work to take into account the maintenance of the quality of life at work with other employees ;
- the equipment, its rules of use, its costs and insurance, etc.
- the rules for covering professional expenses, as defined in the company.
3/ how much does it cost the company?
As far as costs are concerned, whereas previously the Labor Code stipulated that the employer had to pay all costs arising directly from the exercise of telework, this provision has now been removed, mainly because of the complexity of its implementation.
This does not mean that the employee is responsible for all costs related to telework. In fact, the employer has a general obligation to pay for the costs incurred in the performance of his duties.
In practice, it is only the extra costs directly related to telework that the employer will have to bear. In other words, in my opinion, it will be a matter of identifying the expenses that the employee would not have incurred if he had worked in the company.
For example, if the employee already has an internet subscription when he/she starts teleworking, the employer will not be obliged to reimburse him/her for part of it. On the other hand, if the employee has to use office supplies such as paper, folders, etc., a reimbursement will have to be considered.
It is therefore in your interest to define, as far as possible, in the company agreement or in the internal charter, the conditions and modalities for the reimbursement of additional costs linked to telework.
4/Telework, a new psychosocial risk ?
Telework constitutes a risk linked to the distance of the employee from his work community and to the regulation of the use of digital tools.
For this reason, we advise you to update your single risk assessment document to include the telework situation.
In addition, because of the risk of isolation of employees in telework situations, the ANI of November 26, 2020 invites employers to pay particular attention to telework employees and to :
- implement measures to ensure that social ties are maintained ;
- define common operating rules including benchmarks for activities, individual and collective responsibilities, flexibility and autonomy for each teleworking employee, contacts and resource persons, and how they can be contacted ;
- organize regular group work times ;
- provide services dedicated to isolation issues, within the human resources department or the occupational health services, so that the employee can alert them in case of feeling of isolation.
5/ Taking pregnancy into account
The law aimed at accelerating economic and professional equality provides that, from now on, the collective agreement on teleworks applicable in the company or, failing that, the charter drawn up by the employer, must also specify the terms and conditions of access by pregnant employees to a telework organization (art. L. 1222-9, II, 6° of the French Labor Code) / (art. L. 1222-9, II, 6° labor French code).
6/ Incapacity and telework
In principle, the employer is free to decide whether or not to set up telework in his company.
However, in certain situations, the employer may be obliged to consider telecommuting. This was the ruling handed down on March 29, 2023 (no. 21-15.472), in which an employee was declared unfit for her position as medical secretary in charge of an occupational medicine center. The occupational physician had specified that she “could occupy a part-time (2 days/week), non-travel administrative position by telecommuting, with appropriate adaptation of the workstation”. In this ruling, the French Supreme Court ruled that if the occupational physician recommends telecommuting as a means of reclassifying an unfit employee, the employer must examine this possibility as part of its obligation to reclassify the employee. He cannot reject this solution on the sole grounds that the company does not practice telecommuting.
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You can also read our article “Luncheon vouchers: can employers exclude teleworking employees?” / “Tickets-restaurant : l’employeur peut-il exclure les salariés en télétravail ?”
