Élisabeth Borne, the Minister of Labor has warned, there will be checks. Labor inspectors will be able to verify the application of telework … Paul van Deth, lawyer specializing in employment law at the Vaughan Associates firm, gives us his insight.
franceinfo: For an employer, is it an absolute duty today, a legal obligation, to place all its employees who can telework?
Paul van Deth: No. As much, in common law teleworking is a flexible right, as much teleworking that we see today, is a soft norm. That is to say that apart from telling employers “you have the possibility to impose teleworking on your employees”, the labor code does not impose anything in this area.
What are the risks that an employer runs if he does not telework his employees?
Last Wednesday’s instruction is interesting because it asks labor inspectors to check and verify whether teleworking stations are indeed teleworked. In reality, there is no provision, apart from communications, apart from the sanitary protocol, apart from standards which are totally soft and which have no binding value, there is no provision which requires the employer to follow this recommendation. On the other hand, there are provisions which are in the labor code and in the penal code which require the employer to protect the health and safety of his employees.
What is the role of labor inspectors?
The instruction given to them refers to the risk assessment. Employers have an obligation to keep a single document that assesses, identifies and responds to the problem of the identified risk: how I respond to the risk that I see. In this case when there are too many employees on the premises and they are likely to have contacts, the answer is teleworking. The employer is supposed to ask the question.
There is first this single document, then a set of rules and in particular the endangerment of others. The employer cannot deliberately endanger his employees. And what is interesting in the instruction and in the various government communications is that employers are alerted by saying: “you have been warned, there is a rise in the epidemic and therefore you must react accordingly”.
How do labor inspectors actually act?
What we are starting to see is that labor inspectors first recall the law. They recall the employer’s safety obligation. He must implement the necessary measures to preserve health. Health is physical health with the risks associated with the epidemic, but it is also psychological health. There is not one that dominates the other. So the employer must put in place measures adapted to his situation. Each company must, within the framework of social dialogue, think about and put in place actions, and in particular teleworking, to ensure that health measures are respected.
And for that we can not say that the sanitary protocol is the only rule to respect. So I say “vigilance” ‘because the employer, even if he will no doubt receive a letter from the labor inspectorate which will not necessarily “align” him immediately, because the rules are not necessarily violated , it is not that obvious, but we have to be vigilant, because there is this famous single risk assessment document that must be updated, and then, we must put in place a certain number of measures adapted to the company to ensure compliance with health rules.