2) In which cases is teleworking compulsory (Dans quels cas le Télétravail est obligatoire) ?
In principle, teleworking must be the subject of an agreement between the employee and his employer. (Article L.1222-9 of the Labor Code)
However, “in exceptional circumstances, in particular the threat of an epidemic or in the event of force majeure, the implementation of telework can be considered as an arrangement of the work station made necessary to allow the continuity of the activity of the and guarantee the protection of employees. "(Article L.1222-11 of the Labor Code)
However, in the context of the fight against Covid-19, teleworking has become the rule and is imposed on both the employer and the employee as soon as the position concerned allows it.
Indeed, if the aforementioned decrees of March 16 and 23, 2020 authorize travel between home and work and professional travel which cannot be postponed without more precision, the press release from the Ministry of Labor is much more restrictive since he specifies that it is "imperative that all employees who can telework use telework until further notice".
The derogatory travel authorization posted online on the government website also covers travel between home and the place of professional practice when it is essential for the exercise of activities that cannot be organized in the form of telework. and business trips cannot be postponed. https://www.interieur.gouv.fr/Actualites/L-actu-du-Ministere/Attestation-de-deplacement-derogatoire-et-justificatif-de-deplacement-professionnel
Telework is therefore excluded only in cases where the job performed by the employee cannot be organized in this form.
Otherwise, it is strictly mandatory to use it.
In this regard, according to the Ministry of Labor, almost 8 million jobs (or more than 4 jobs out of 10 in the private sector) are now compatible with teleworking so that it should find '' apply for a very large number of employees.
3) How should my working time be organized?
With regard to teleworking, a distinction must be made between working hours on the one hand and the employee's time slots on the other.
3.1) The employer must enforce the maximum hours of work and rest
Regarding working hours, although the rules for counting working hours are more difficult to implement when the employee is at home, the employer remains responsible for controlling the working time of his employees. (Decree of May 30, 2006 extending the national interprofessional agreement relating to telework: https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000640310&categorieLien=id)
Indeed, telework does not exempt the employer from ensuring compliance with maximum working hours and rest periods.
It is therefore up to him to set up a reliable system for counting working hours (self-declaration system, system for monitoring connection times on the computer, etc.); even if the employee freely manages his working hours.
Similarly, if the employee works overtime, it must be paid to him.
The workload entrusted to the worker must moreover be comparable to that applicable when the work is carried out on the premises of the company (article 9 of the national interprofessional agreement of July 19, 2005 relating to teleworking).
For employees on a day pass, the employer must always ensure compliance with the minimum daily rest of 11 hours and the weekly rest of 35 hours minimum as well as the maximum durations.
3.2) Availability time slots during which the employee must be reachable
Contrary to the work carried out within the premises of the company, teleworking supposes the fixing of time slots on which the employee must be reachable.
As a result, the employee, who freely manages his working time, is not forced to be permanently available in case his employer wants to join him.
Outside these hours, he cannot be penalized for not having replied to his employer. (Cass. Soc., 17 Feb 2004, n ° 01-45889)
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Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
Marilou OLLIVIER avocat
CHHUM AVOCATS (Paris, Nantes, Lille)
e-mail: chhum@chhum-avocats.com
https://www.instagram.com/fredericchhum/?hl=fr
.Paris: 4 rue Bayard 75008 Paris tel: 0142560300
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