Covid-19: faced with legal uncertainty, employers could be tempted to refuse teleworking to their employees

To limit the outbreak of Covid-19 cases, Jean Castex announced Monday, December 27 a strengthening of telework from the beginning of January, at the rate of “three days minimum per week and four days when possible” for a period of three weeks. But the law providing for an administrative sanction against companies has not been passed and for the moment, the obligation of teleworking three or four days a week is only included in the health protocol, which has no value. legally binding. An employer may therefore be tempted, at least at the start of the week, to refuse teleworking, and there will not be much to do against it.

The first thing to do if your employer refuses you to telework is to make sure that your position is suitable for teleworking. What criteria should we base ourselves on? “The criteria are criteria in principle defined by the business manager, explains David Guillouet, lawyer specializing in labor law at MGG Voltaire, in Paris. It may be the need to receive the public, it may be the difficulty of working from home. We forget that a certain number of employees do not always have the technical capacity to be able to telework. So that should also be able to oppose the realization of telework. “

If the position can be teleworked, what can be done? We must first contact the staff representatives, then we will proceed to the labor inspectorate. But beware, it is always the employer who sets the rules. “If the employer is within his rights, the refusal to report to his work station can be considered as being an abandonment of post, and hence, being able to allow the employer to initiate a dismissal procedure for abandonment. From post”, continues David Guillouet.

Can we exercise our right of withdrawal? A right that allows you not to come to work while being paid. For David Guillouet, it does not apply in this type of circumstance: “Quite honestly, if the employer is able to demonstrate that in the workplace, barrier gestures are respected, that social distancing is respected and that there is a whole battery of measures allowing employees to infect each other others, it will not be at all easy for the employee to demonstrate that the right of withdrawal is legitimate. “

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