[ITW] Teleworking: rider or no rider?

Since March 17, 2020, teleworking has become the rule in many French companies. Overnight, most service sector employees have switched to this new work organization.

Some employees were already accustomed to it, since telecommuting is nothing new and is sometimes well established in companies, with appropriate organization. But in most cases, telecommuting was something new, and had to be adapted to immediately, with or without a telecommuting charter, with or without a collective agreement, with or without an amendment to the employment contract...

How do you manage the teleworking relationship? Anne Le Nouvel, employment law specialist and editor-in-chief of a legal website, answers our questions.

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Do I need to add a rider to my employment contract?

Anne Le Nouvel:

It's important to remember that, in principle, telecommuting is voluntary. However, this rule has been undermined by the confinement of the workplace, as employers have had to force employees to telework. The French Labor Code provides for the possibility of telecommuting in exceptional circumstances, notably in the event of a pandemic.

In the event of a switch to telecommuting under "normal" circumstances, a rider to the employment contract is the rule, formalizing in writing the new working conditions and the rights and obligations of both employee and employer, thus avoiding any ambiguity.

This telecommuting rider specifies :

• the conditions for switching to telecommuting,
• and the conditions for returning to work without teleworking.

In the case of so-called exceptional situations, there's nothing compulsory about a rider, unless collective agreements provide for it.

Nevertheless, a rider to the employment contract is always to be preferred, and has the merit of clarifying and securing the teleworker's situation, the terms and conditions of the contract and the terms and conditions of the contract.It clarifies and secures the teleworker's situation, and sets out the telework arrangements adapted to the teleworker's situation and the company's context.

To sum up

• under normal circumstances, a rider to the contract is mandatory in the event of a switch to telework,
• in exceptional circumstances, it is not.

If the situation returns to normal, will the rider once again become the rule?

Anne Le Nouvel:

Once we're out of the pandemic and life returns to normal (let's be optimistic...), companies will still be able to have employees work from home, even if they don't have a teleworking charter or a specific agreement on the subject.

However, if employees continue to telework, employers will need to secure their agreement, and have them sign a rider to the contract (if this has not already been done).

The rider will once again become the rule, since telecommuting will once again be based on voluntary agreement.

Is a collective agreement required to implement "normal" telecommuting within the company?

Anne Le Nouvel:

No, a collective agreement (signed between the employer and union delegates) is not mandatory. To implement telecommuting, the company can either :

• sign a collective agreement if there are one or more union delegates;
• draw up a teleworking charter, which must first be submitted to the CSE (social and economic committee) for approval;
• obtain the agreement of each employee concerned by telecommuting.

Neither the collective agreement nor the charter is compulsory, although both are strongly recommended if telecommuting is used on a regular basis, as they establish a collective framework for the organization of work.

Apart from exceptional circumstances, however, the employee's agreement is imperative. A company can never impose telecommuting.

What must the amendment to the employment contract specify?

Anne Le Nouvel:

The amendment to the employment contract concerning the employee's move to telecommuting must contain the following information:

• the conditions for switching to teleworking,
• the conditions for returning to a non-teleworking contract,
• procedures for monitoring working hours or regulating workload,
• determination of the time slots during which the employer may contact the teleworking employee,
• information on restrictions on the use of computer equipment, and penalties for non-compliance with such restrictions,
• health and safety instructions ,
• confidentiality guidelines .

In addition, the agreement must specify who is responsible for maintaining the equipment, as well as for any costs incurred by teleworking, particularly those relating to communications.

Lastly, the agreement must specify any variable working hours, with the obligation to respect :

• maximum daily and weekly working hours,
• breaks,
• the maximum working day,
• daily and weekly rest periods,
• and disconnection rights.

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Does the rider have to reimburse the employee for specific telecommuting costs?

Anne Le Nouvel:

Unless provided for in the rider or the teleworking charter, the employer is not obliged to cover the costs of teleworking. costs associated with telecommuting, such as part of the heating or electricity bill, Internet subscription, etc. It is possible, however, to reach an agreement with the employer.

It is, however, possible to agree on a lump sum to be paid to the employee on a monthly basis. Home occupation expenses may be reimbursed to the employee, but there are no specific rules on this subject as yet.