Background information

Following the passage to stage 3 of the pandemic, teleworking becomes imperative for all positions that allow it. Teleworking is a right provided for in Article L. 1222-9 of the Labour Code, resulting from the Order of 22 September 2017, and must be favoured in phase 3 of the epidemic. An employee can therefore ask his employer to benefit from telework until further notice. The employer may refuse, but reasons must be given for the refusal.

Content of measure

Since the passage to stage 3 of the epidemic, the implementation of telework must be imperative as soon as the workstation allows it. Telework can be implemented when the workstation layout is made necessary to allow the continuity of the company's activity and to guarantee the protection of employees.

Article L. 1222-11 of the Labour Code mentions the risk of an epidemic as a possible justification for the use of telework without the employee's agreement. The implementation of telework in this context does not require any particular formalism.

In a circular, the ministry of Labour estimate the employee must receive an allowance intended to reimburse the employee for the costs arising from telework: 'In the context of the current health crisis – since telework is carried out, in the majority of cases, over the entire actual working time and is made necessary to allow the continuity of the company's activity, to guarantee the protection of employees and for reasons of public health – it should be considered that the employer is obliged to pay his employee a telework allowance, intended to reimburse the employee for the costs arising from telework'. Indeed, the employer has an obligation to bear the professional expenses. This obligation is provided for without restriction by the case-law, which is of general application and must cover teleworkers.

'However, adds the ministry of Labour, in view of the difficulty of identifying and circumscribing the expenses relating to the professional activity and those relating to personal life, it is in the employer's interest to favour a lump sum which will simplify its management'.

If the allowance paid by the employer is a lump sum, it will then be deemed to be used in accordance with its purpose and will be exempt from social security contributions up to an overall limit of €10/month for an employee who teleworks one day per week. This exempt lump-sum allowance increases to €20/month for an employee teleworking two days a week, €30/month for 3 days a week, etc.

Use of measure

In 2017, about 3% of employees were teleworking at least once a week. According to an INSEE economic report published on 26 March 2020, i.e. ten days after the start of confinement, approximately one third of employees are working at their usual place of work, one third are teleworking and the last third are on short-time working. On 15 March, in a press release, the Ministry of Labour estimates that close to 8 million jobs (or more than four out of ten jobs) are compatible with telework in the private sector.

According to the DARES-ACEMO survey published on 29 September 2021, telework, especially full-week telework, is stabilising at a low level: in August, only 13% of employees teleworked every day of the week (i.e. 3% of all employees as in July, after 4% in June, 8% in May and 10% in April). As of 31 August, 38% of employees work in an organisation where teleworking is not available (as on 31 July). This proportion is particularly high in the smallest companies and decreases sharply with company size. 19% of employees work in a company that requires at least one day of telework per week (- 3 points compared to July). These companies are more likely to be large. When a minimum number of days of telework is required, it is most often a minimum of two days of telework per week. At the beginning of September, 30% of the employees work in a company that intends in the next few months to establish a new rule or to change the existing rule on telework.

Target groups

Workers	Businesses	Citizens
Employees in standard employment	Does not apply to businesses	Does not apply to citizens

Actors and funding

Actors	Funding
National government Company / Companies	No special funding required

Social partners

Social partners' role in designing the measure and form of involvement:

	Trade unions	Employers' organisations
Role	Informed	Informed
Form	Not applicable	Not applicable

Social partners' role in the implementation, monitoring and assessment phase:

• No involvement
• Main level of involvement: Unknown

Involvement

Social partners were not consulted for the first lockdown, but were regularly consulted for each update of the National protocol to ensure the health and safety of employees in the workplace in the face of the COVID-19 epidemic. The protocol had relaxed the use of telework during the summer, before reinforcing employers' obligation since the launch of the third lockdown, in March for some departments and in April for the whole territory.

Views and reactions

Social partners have welcomed the need to use telework as much as possible. But some employers' organisations were against the obligation to set up an action plan since 18 March 2021. For instance, on 23 March, the CPME (the employers' organisation representing mainly SMEs, denounced the new version of the health protocol in companies, which requires companies in lockdown zones to draw up an "action plan" to promote teleworking. 'No doubt one more piece of paperwork will be an effective barrier against the epidemic,' CPME reacted wryly in a statement. The employers' organisation, according to which 'administrative creativity has no limits', adds that 'company directors running a small or medium-sized business will appreciate that, if they are not offered a vaccination date, a new obligation is imposed on them'. With regard to telework, 'a form of lassitude prevails and it is becoming more and more difficult for employers to impose it. Many employees say they suffer from isolation and want to return to the company's premises', the CPME also states.

Trade unions agreed to increase the number of employees in telework, but denounce regularly the lack of financial support of employer and stress the difficult working conditions for some employees living is small accommodations.

Update 23 November 2021 The Medef is opposed to making telework compulsory, said its president Geoffroy Roux de Bézieux on 23 November. "It is necessary to let the social dialogue of proximity take place," he said, adding that "there are many companies that have signed agreements. "He added that the decision taken by Belgium in the face of the resurgence of the epidemic to make teleworking compulsory four days out of five wherever possible "is a mistake". He said that telework "sometimes creates a feeling of incomprehension and frustration for those who cannot telework". "I see a lot of industrial companies asking their administrative staff not to telework to create a sense of equality between those who are stationed on the line or elsewhere and those who can telework", he explained.

Sources

• 16 April 2020: Coronavirus : Questions/réponses pour les entreprises et les salariés (travail-emploi.gouv.fr)
• 03 February 2021: Direction Général du Travail. Instruction DGT du 3 février relative à l’intervention de l’inspection du travail dans le cadre des mesures sanitaires de lutte contre la Covid-19
• 03 February 2021: Instruction DGT du 3 février relative à l’intervention de l’inspection du travail dans le cadre des mesures sanitaires de lutte contre la Covid-19
• 23 March 2021: CMPE, Pour faire barrage à l’épidémie, le gouvernement envisage une nouvelle paperasse, Press release (www.cpme.fr)
• 25 March 2021: Instruction DGT du 25 mars 2021 relative aux orientations et aux modalités d'intervention du système d'inspection du travail (SIT) dans le cadre des mesures renforcées de lutte contre la COVID-19.
• 25 March 2021: Télétravail en période de COVID-19 (travail-emploi.gouv.fr)
• 14 June 2021: ANACT (2021) : « Télétravail de crise en 2021 : quelles évolutions ? Quels impacts ? (www.anact.fr)
• 10 September 2021: Protocole national pour assurer la santé et la sécurité des salariés en entreprise face à l’épidémie de Covid-19 (travail-emploi.gouv.fr)
• 29 September 2021: Activité et conditions d’emploi de la main-d’œuvre pendant la crise sanitaire Covid-19 (dares.travail-emploi.gouv.fr)
• 30 December 2021: Protocole national pour assurer la santé et la sécurité des salariés en entreprise face à l’épidémie de COVID-19 (travail-emploi.gouv.fr)