With France in the middle of its second wave of coronavirus infections and under a nationwide lockdown, injunctions to impose remote work have multiplied through declarations by the Minister of Labor, instructions addressed by labor inspectorates to enforce the rules of the health protocol within companies, and in particular, the lockdown. Some labour administrations have even sent companies messages specifying that the implementation of telework is not left up their free choice nor that of employees, as long as the workstation or functions allow the work to be accomplished remotely/from home.
The labour administrations have asked for an exhaustive inventory of the organizational measures implemented in relation to remote work.
Confusion has ensued for many employers, since no legal provision actually requires the employer to implement remote work!
In fact, the Frequently Asked Questions on telework published by the Ministry of Labor, updated on November 6, states that according to the national protocol, telework remains a “recommended “method of organization in that it participates in the process of preventing the risk of infection and helps to limit the use of public transportation. Furthermore, the French Conseil d’Etat (Administrative Supreme Court) considers that this national protocol is a “set of recommendations” constituting the “operational declination” of the articles of the Labor Code relating to the employer’s safety obligation.
However, even though no sanctions are provided for in the Labor Code, it may be very risky for the employer to not implement remote work for the job positions that allow it. Indeed, the safety obligation, provided for in Articles L. 4121-1 et seq. of the Labor Code, requires them to take the necessary measures to ensure that the health of their employees is not compromised. In France, this obligation is very important and in the context of the first wave of the pandemic, it gave rise to a heavy jurisprudence last spring.
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