The COVID-19 public health crisis unquestionably marked resorting to teleworking, and it did not fail to develop labor law.

It was thus that on 20 October 2020 the social partners entered into a new Agreement on the Legal Regime for Teleworking (the “2020 Agreement“).

The 2020 Agreement applies to all salaried employees, except for certain categories covered in the Agreement (transfers, transportation sector, sales representative, co-working, smart-working and services to clients outside of the business).

The 2020 Convention defines teleworking as “a form of organization or performance of work, generally using information and communication technologies, such that the work, which would normally have been carried out on the employer’s premises, is effectuated outside of those premises”.

Thus, reference to the salaried employee’s domicile has been deleted, given that the work can be performed from any other place.

The 2020 Convention adopts a new distinction between:

  • “occasional teleworking“: intended to deal with unplanned events or when the teleworking represents less than 10% of the annual work time; and
  • “regular teleworking” in the other cases.

Teleworking is voluntary as between the parties and is thus by mutual agreement. For a regular teleworker, the 2020 Agreement requires a written agreement, and for occasional teleworking a simple written confirmation by the employ suffices.

In a written agreement, the teleworking modalities must be set out beforehand in writing and determine the potential means of compensation in case of the salaried employee’s loss of an in-kind advantage. The adaptation period has been abandoned, but the information and consultation of the staff delegation (délégation du personnel) have been maintained. The costs directly resulting from the teleworking are to be borne by the employer.

The 2020 Convention also covers the salaried employee’s privacy protection as well as the right to disconnect.

However, numerous practical questions remain to be resolved. In particular, the tax rules in an unchanged international legal context the nature of which limits crossborder workers’ resorting to teleworking.

The 2020 Convention was declared a general obligation and entered into force on 2 February 2021 for a period of 3 years.

If you wish to know more about the teleworking legal regime, we invite you to contact us at labor_and_employment@dsm.legal

By Mario DI STEFANO, Managing Partner – Avocat à la Cour.

Article from the Law & Legal Counsel column – NEOMAG 39.