According to Article L.1222-9 of the Labour Code, telework is any form of organisation of work, which could have been carried out on the employer's premises and which is carried out outside these premises, such as at home, in co-working spaces, etc. When telework is implemented, it must be supervised. It is recommended to implement it through a telework agreement. What does the law say about this?
Telework agreement: how to set it up?
Before 2018, regular telework could only be implemented by a collective agreement or, failing that, within the framework of a charter as mentioned in the ordinance of 22 September 2017. Following the changes made by Law No. 2018-217 of 29 March 2018 telework, whether regular or occasional, can be put in place:
- In the framework of a collective telework agreement ;
- In the absence of an agreement, within the framework of a charter drawn up by the employer after consulting the CSE(Social and Economic Committee), if it exists;
- Or, in the absence of a collective agreement or charter, by agreement between employer and employee, formalized by any means.
The employer does not have to impose telecommuting on the employee, except in the case of what is dictated in article L. 1222-11 of the French Labor Code: "in the event of exceptional circumstances, in particular the threat of an epidemic, or in cases of force majeure, the implementation of telecommuting may be considered as an adaptation of the workstation made necessary to enable the continuity of the company's activity and guarantee the protection of employees".
Telecommuting therefore requires agreement between employer and employee. The terms and conditions of telecommuting can be specified at the time of hiring or at a later date.
Telework agreement: what conditions to implement telework?
The collective agreement or, failing that, the charter drawn up by the employer shall specify the following arrangements:
- The conditions for switching to regular or occasional telework and special cases (in the event of a pollution episode mentioned in Article L. 223-1 of the Environment Code), and the conditions for returning to a work contract without telework;
- The terms and conditions of acceptance by the employee of the conditions of implementation of telework ;
- The modalities for monitoring working time or regulating the workload ;
- Determining the time slots during which the employer can usually contact the teleworking employee;
- The arrangements for disabled workers to have access to a telework organisation, in application of the measures provided for in Article L. 5213-6.
Employees who are subject to a fixed day rate and who have autonomy in the organisation of their time must determine the time slots during which the employer may contact them.
Telework agreement: what to do in case of opposition?
If the employee requests to telework, the employer retains the possibility to object to the request.
However, an employer who refuses to grant the benefit of telework to an employee (who occupies a position eligible for telework according to the agreement or charter) must give reasons for this.
On the other hand, if the employee refuses to telework, the employer cannot force him/her to do so, except in the exceptional cases mentioned above.
Therefore, the employee's refusal of a telework position could not constitute a reason for a breach of the employment contract.
What are the employer's obligations towards a teleworker
The employer has specific obligations towards a teleworker, including
- Informing the employee of any restrictions on the use of office supplies and tools, electronic communication services, etc., as well as the penalties for non-compliance with such restrictions;
- Organise an annual interview as for every employee in the company, which focuses on the employee's working conditions and workload;
- To give priority to teleworkers to take up or return to a non-teleworking job that matches their qualifications and skills and to inform them of the availability of any such job.
What are the rights of a teleworker?
The teleworker has the same rights as an employee working on the company's premises:
- Health and safety at work ;
- Respect for privacy ;
- Access to the company's social activities ;
- Access to trade union information ;
- Access to social benefits (such as the right to meal vouchers) ;
- Access to vocational training ;
- Right to disconnect.
It should be noted that in the event of an accident at work at the place and time of telework, this accident is presumed to be an accident at work.
