The legal framework for teleworking
The legal provisions relating to teleworking are provided for in Articles L. 1222-9 et seq. of the Labour Code since Act No. 2012-387 of 22 March 2012. Telework is defined as “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 those premises on a voluntary basis using information and communication technologies” (article L. 1222-9 of the Labour Code).
Telework can be considered at the time of hiring or during the course of the employment contract, at the employee’s request or on the employer’s proposal.
The use of telework within a company can be regular or occasional. The employer may propose to all his employees to benefit from it or only to one category of them.
Good to know: a teleworking employee can work from home (in this case he will have the status of a homeworker), but also in an office equipped and made available by his company, or in any other place chosen in consultation with his employer as a telecentre.
The implementation of telework in accordance with the law
Telework is neither a right nor an obligation. The Labour Code envisages two possibilities for setting up telework, depending on whether the company regularly uses it or not. In both cases, the law requires that the employee and his employer have reached an agreement.
The law suggests that companies should regulate telework
Where telework involves several employees, or if the employer plans to make regular use of it, even on an ad hoc basis or in certain specific circumstances, telework can be introduced and regulated within the company.
The Labour Code provides that teleworking is to be implemented by a collective agreement or within the framework of a charter drawn up by the employer after consulting the Social and Economic Committee (Article L. 1222-9 of the Labour Code).
The agreement or charter must regulate the conditions under which telework is used and the terms and conditions of its exercise. These documents must specify in particular (Article L. 1222-9 of the Labour Code):
- the conditions for switching to teleworking and returning to the execution of the employment contract at the company’s premises;
- the terms and conditions for the employee’s acceptance of the conditions for implementing telework;
- the procedures for monitoring working time and regulating the workload in teleworking;
- the determination of the employee’s working hours during which he can be contacted by his employer;
- the terms and conditions for disabled workers to access telework.
Good to know: an employer who denies telework to an employee whose position is eligible for this organisation under the collective agreement or charter must legitimately justify its refusal on the basis of objective criteria and reasons.
Important: an employer cannot force his employee to accept telework. Except in exceptional circumstances or force majeure, situations in which telework can be considered as “an adaptation of the workplace made necessary to allow the continuity of the company’s activity and guarantee the protection of employees” (Article L. 1222-11 of the Labour Code), the employee’s refusal to accept telework does not constitute a reason to terminate the employment contract.
An agreement between an employee and his employer is sufficient to establish telework under the law
In the absence of a collective agreement or charter, an employee and his employer may jointly decide to use telework. The Labour Code provides that they may freely formalize their agreement, by any oral or written means. An amendment to the employment contract is not necessary.
Advice: even if the implementation of telework is based on a simple agreement between the employee and his employer, it is preferable that a framework be established beforehand. Think about the conditions for implementing telework, its framework and organisation, and set them down in writing.
The exercise and progress of telework: what the law says
The fact that the employee does not carry out his duties on the company’s premises does not affect his rights and obligations. The employer, for its part, is required to comply with some additional obligations arising from the telework situation of one or more of its employees.
Identical rights and obligations for an employee working from home
Employees working at home, on an occasional or permanent basis, enjoy the same individual and collective rights as other employees of the company (Article L. 1222-9 of the Labour Code).
Thus, in particular, teleworkers:
- are subject to the same collective agreements and conventions (unless these texts provide that this is not the case);
- have the same social security coverage, sickness and accident at work;
- are subject to the same legal provisions as regards minimum social benefits, overtime pay, public holidays and leave days, etc…;
- have the same training rights;
- are entitled to the same social benefits (meal vouchers, works council).
In this context, they are subject to the same obligations as any other employee and may therefore be exposed to disciplinary sanctions under the same conditions if they do not respect the obligations arising from their employment contract.
Note: any dispute arising from the performance of an employment contract carried out wholly or partially in telework falls, like other disputes between an employee and his employer, within the jurisdiction of the Labour Court (Article L. 1411-1 of the Labour Code).
The specific obligations of the employer having employees working from home
In addition to its general obligations, the employer is bound by certain obligations that arise specifically from the teleworking situation of its employees (article L. 1222-10 of the Labour Code).
- schedule an annual interview with the employee to discuss issues related to the organization of his or her telework assignments;
- inform its employee “of any restrictions on the use of computer equipment or tools or electronic communication services” and specify the penalties incurred in this regard;
- offer as a priority to any employee in a teleworking situation a position that would be vacant on the company’s premises and that would correspond to his or her qualifications and skills.
Good to know: the employer is not legally required to bear the costs of teleworking at home, but in general the collective agreement or company charter provides for all or part of the costs incurred, in proportion to working hours (e.g. rent, energy supply, use of computer equipment, etc.).