COMPANY Obligation to telework from January 3, 2022? Lawyer Hervé-Georges Bascou explains everything to us

Hervé-Georges Bascou, lawyer specializing in labor law and URSSAF control, doctor of law Photo: AS/Objectif Gard

The Minister of Labor announced it: from January 3, 2022, employers set for three weeks a minimum number of three days of telework per week, for positions that allow it, four when possible. Hervé-Georges Bascou, lawyer specializing in labor law and URSSAF control, doctor of law, gives an update on the obligations.

Objectif Gard: Is it the mandatory return of teleworking in companies from Monday January 3, 2022?

Herve-Georges Bascou: To this question, I must first address both the legal and practical aspects. On a purely legal level, the State cannot, today, impose on business leaders to set a number of teleworking days for employees whose positions allow it. The reasons are simple and I had already mentioned them in my previous articles. First, the Council of State on October 19, 2020 recalled that the health protocols have only a value of recommendation; in other words, a labor inspector cannot sanction a company that does not impose teleworking on its employees from January 3, 2022. To be able to impose it, a decree in Council of State would have been needed which does not exist to date so no sanction can be applied (CT, art. L.4111-6). On a practical level, an employer who does not comply with this recommendation will however have to prove that the measures he is taking are, at a minimum, as protective as the three days of telework (minimum) requested by the Ministry of Labor via the health protocol; particularly difficult mission you will agree. Let’s never forget that every business manager has a security obligation to provide reinforced means of protecting the physical and mental health of his employees. As such, it must implement actions, prevention and information measures. He must also constantly assess the occupational risks at each workstation (in particular the importance of the occupational risk assessment document). In the event of non-compliance with this security obligation, its civil and criminal liability may be incurred.

In other words, do you recommend that business leaders respect the health protocol and telework from Monday January 3, 2022?

Yes, in their interest and the interest of their employees. Afterwards, each decision-maker does what he wants. My job as a counselor is to anticipate, avoid possible problems and protect business leaders by putting in place appropriate organizational tools (charter, company agreement on teleworking). In practice, many business leaders have already worked on teleworking and have concluded a company agreement or drawn up a charter. Most often, I advise them to work remotely one or two days a week; nor for reasons of obvious social cohesion and trauma related to confinement, the extent of which we are still far from knowing for those who have teleworked without preparation and without real autonomy. From January 3, 2022, business leaders will have to increase the number of teleworked days to 3, for 3 weeks. What is regrettable is the lack of time given to business leaders to prepare, particularly in terms of organisation. As for teleworking 4 days, I do not recommend it even if it is possible.

What does “Positions that allow” mean?

The health protocol does not define what covers: “the positions that allow it”. Let’s go back for a moment to some of the fundamentals of telework. Telework, in normal times, was based on 3 principles: volunteering; the employer could not impose it on the employee (except in exceptional circumstances – epidemic, etc.). Autonomy; the employee must be autonomous in his tasks. Trust ; trust represents this feeling of assurance to believe in the other and to be able to rely on their words and actions without questioning their integrity. In times of pandemic, only autonomy remains. Today, there is no list of “teleworkable” positions. To define the positions eligible for teleworking, it is a question of identifying for the business manager in concrete terms the activities that can be the subject of teleworking. Then and most importantly, the employees must be completely autonomous, perfectly prepared for this form of organization, with real experience, in “those positions that allow it”.

And how to plan the preparation?

When I talk about preparation, which is the key word for the success of telework, it must always be considered on several axes. Technical preparation: By January 3, 2022, the employer must already have all the technical and IT resources within his activity, having previously protected all of his professional data. It cannot be improvised. We are now seeing the catastrophic results of this war telework, improvised from the first confinement and the consequences on employees and companies. Organizational readiness. As such, it is obviously necessary that both the teleworker and the manager be trained in this form of organization beforehand. Teleworking is becoming more lively: regular information, prioritization of activities, team leadership, support for carrying out work, etc. are some of the key roles of remote management. In other words, telework can be learned. Finally, legal preparation with, at a minimum, information to teleworkers on this new organization for 3 weeks set by the company manager. I will obviously call and inform the members of the CSE of the situation of the organization put in place.

What do you propose for business leaders to implement telework for 2022?

With Messrs Gérard Peccoux and Christophe Fabre, directors of the CALLIMEDIA Company, we have created 2 digital training courses, one for telemanagers and the other for teleworkers, with a commented drafting of each clause of a charter agreement intended for all business leaders and employees. We will allow them free access to our work and financial investment of a year and a half in a few days. Our wish, our desire is that they make, according to their means, a donation directly to one of the three associations that are close to our hearts: the Montpellier Cancer Institute; APEDM Saint Joseph in Alès (abused children); or the Friends of the Gendarmerie.

Interview by Abdel Samari

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