David Guillouet is a lawyer, specialist in labor law, within the Parisian firm MGG Voltaire. Some companies are not respecting government requests to switch 100% to telecommuting for positions that allow it.
franceinfo: Total asks its employees to come to the head office two to three days a week. It evokes a “necessary collective time”. Does he have the right?
David Guillouet: It all depends on the legal value given to the health protocol and to government declarations. If we want to remember that all this has no legal effects, the answer is yes, Total has the right to bring its employees to their workplace by evoking a mode of organization that it wishes to highlight.
It should be remembered when in the health protocol, it was repeatedly said that 100% teleworking became the norm when their task could be carried out remotely. However, as this protocol has no legal effects, it is therefore not legally binding on the employer. If the government wishes it to be otherwise, it should pass a law, which today is not the case.
Can an employee refuse to accede to such a request, on the pretext that he fears for his health? Can he fear sanctions?
The employee can make use of the classic provisions of the Labor Code which allow him, if he fears for his health and safety, and if he is able to justify a serious and imminent danger, to exercise his right of withdrawal . But this is at his own risk, because if the employer has followed the recommendations of the national protocol and if the barrier gestures are respected within the company, it is likely that the judge will consider that the right of withdrawal does not exist. is not justified. The employee will then be deprived of his remuneration and may even incur a sanction.
What if I fall ill or if I am tested positive after working on the site for several days, what can I do?
We have already had situations of this nature during the first wave. There are two types of recourse that can be considered by an employee. There are remedies under the occupational disease, and those under the employment contract.
For recourse for occupational disease, the employee may attempt to demonstrate that the condition linked to Covid is indeed an occupational disease. It will be necessary to go through a preliminary examination, it will be necessary that the employee bring a certain number of elements to demonstrate that there is a causal link between his affection and the work. In practice, we find that this proof is quite difficult to report for employees outside the health professions. How to demonstrate that one has contracted the Covid at work rather than at a family reunion. In practice, proof is almost impossible. This is why today we see that there are relatively few cases where employers see their responsibility engaged in the field of occupational disease.
There remains the question of the employment contract. If an employee wishes to attack his employer for violating his safety obligation, he could do so before the industrial tribunal. He could even go so far as to take note of the termination of his employment contract and obtain damages. The employee would be wiser to go and seize the labor inspector who could be competent to “raid” the company, and put it on notice, either to correct the situation, or to take the initiative of penal sanctions or administrative.