“If the Ministry of Labor wants teleworking to be compulsory and that it be penalized if it is not implemented, it is up to it to issue a decree in the Council of State, as provided for in the Labor Code” , remember Éric Rocheblave, lawyer specializing in labor law.
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“The principle of systematic and compulsory teleworking in companies in the face of Covid-19 is not established by any legal act”, confirmed Wednesday, March 24 on franceinfo Éric Rocheblave, lawyer specializing in labor law, while the Ministry of Labor published on Tuesday a new health protocol which urges companies to put in place “Action plan” to encourage teleworking. Wednesday morning on franceinfo, Gérald Le Corre, CGT representative of the Ministry of Labor and labor inspector denounced a “lack of political will”.
The lawyer specifies that the Labor Code, in its article L1222-11 provides “that in the event of exceptional circumstances, in particular the threat of an epidemic, the implementation of teleworking can be considered as a job adjustment”. It is therefore “of a faculty and not an obligation”. He adds that no decree in the Council of State “providing that telework would be compulsory has not been adopted”.
Eric Rocheblave points “a succession of texts” taken by the Ministry of Labor, “the famous health protocols of the Ministry of Labor, we are in the umpteenth version”. But he underlines that the Council of State reminded the ministry “that these texts were only recommendations for the employers and that they had no legal obligation of constraint”. If employers “must take measures to protect the physical and mental health of workers”, they can set up teleworking, recommended by the ministry. “But if employers put in place other measures that are just as effective, if not more effective, than teleworking, they have every right to do so and they do not have to be threatened with any sanction.”
“Employers are free to organize their business”, adds Éric Rocheblave. Unlike the sanctions taken in the street for non-compliance with health rules that meet “texts which are adopted”, in company “there are texts which are not adopted”. The lawyer insists: “If the Ministry of Labor wants teleworking to be compulsory and that it be penalized if it is not implemented, it is up to it to issue a decree in the Council of State, as provided for in the Labor Code. Since the first confinement, the government has not taken a decision in this direction. “