[ITW] Teleworking: rider or no rider?

Since 17 March 2020, teleworking has become the rule in many French companies. Overnight, most employees in the service sector have switched to this new way of organising their work.

Some employees were already used to it, since teleworking is not new and is sometimes well established in companies, with appropriate organisation. But in most cases, teleworking was something new and had to be adapted to immediately, with or without a teleworking charter, with or without a collective agreement, with or without an amendment to the employment contract...

How do you manage the teleworking relationship? Anne Le Nouvel, a specialist in employment law and editor-in-chief of a legal website, answers our questions.

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Do I need to add a rider to my employment contract?

Anne Le Nouvel:

It's important to remember that, in principle, teleworking is voluntary. This rule has been undermined by the confinement of the workplace, of course, since employers have had to force employees to switch to teleworking. The Labour Code provides for the possibility of teleworking in exceptional circumstances, particularly in the event of a pandemic.

In the event of a switch to teleworking under 'normal' circumstances, a rider to the employment contract is the rule, formalising in writing the new working conditions and the rights and obligations of the employee and the employer, thus avoiding any ambiguity.

This teleworking rider specifies

• the conditions for switching to teleworking,
• and the conditions for returning to work without teleworking.

In so-called exceptional situations, there is nothing compulsory about a rider, unless collective agreements so provide.

Nonetheless, an amendment to the employment contract is always preferable, and has the merit of clarifying and securing the situation of teleworkers, the terms and conditions of telework, and the possibility of returning to work without teleworking.It has the merit of clarifying and securing the situation of teleworkers and the telework arrangements adapted to the situation of the teleworker and the context of the company.

To sum up

• under normal circumstances, a rider to the contract is compulsory in the event of a switch to telework,
• in exceptional circumstances, it is not.

If things return to normal, will the rider become the rule again?

Anne Le Nouvel:

When we're finally out of this pandemic, and life returns to normal (let's be confident...), companies will still be able to have employees work from home, even if they don't have a teleworking charter or a specific agreement on the subject.

However, as long as employees continue to telework, employers will have to ensure that they have their agreement, and will have to get them to sign a rider to the contract (if this has not already been done).

The rider will once again become the rule, since teleworking will once again be based on voluntary agreement.

Is a collective agreement required to implement 'normal' telework in a company?

Anne Le Nouvel :

No, a collective agreement (an agreement signed between the employer and union delegates) is not compulsory. To implement telework, the company can either :

• sign a collective agreement if there are one or more trade union delegates;
• draw up a teleworking charter, which must first be submitted to the CSE (social and economic committee) for approval;
• obtain the agreement of each employee concerned by teleworking.

Neither the collective agreement nor the charter is compulsory, although either is strongly recommended where teleworking is used on a regular basis, as it provides a collective framework for the organisation of work.

On the other hand, apart from exceptional circumstances, the employee's agreement is imperative. A company can never impose teleworking.

What should the amendment to the employment contract specify?

Anne Le Nouvel:

The amendment to the contract of employment for the change to teleworking contains the following information:

• the conditions for switching to teleworking,
• the conditions for returning to performance of the contract without teleworking,
• the arrangements for monitoring working time or regulating the workload,
• determination of the time slots during which the employer may normally contact the teleworking employee,
• information on restrictions on the use of IT equipment, and penalties for non-compliance with such restrictions,
• health and safety instructions ,
• confidentiality guidelines .

In addition, the agreement must specify who is responsible for maintaining the equipmentand the costs incurred by teleworking, particularly those relating to communications.

Lastly, the rider should specify any variable working hours, with the obligation to comply with :

• maximum daily and weekly working hours,
• breaks
• the maximum working day,
• daily and weekly rest periods,
• and the terms of the right to disconnect.

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Should the rider provide for the reimbursement to the employee of costs specific to teleworking?

Anne Le Nouvel:

Unless provided for in the rider or the teleworking charter, the employer is not obliged to cover the costs of teleworking. costs associated with teleworking, such as part of the heating bill, electricity bill, internet subscription, etc. It is possible, however, to reach an agreement on this.

However, it is possible to agree on a lump sum to be paid to the employee every month. Home occupation costs may be reimbursed to the employee, but there are as yet no specific rules on this.