Often presented in press articles as a panacea for employing people with disabilities, teleworking has clearly developed during the health crisis, but still needs to be activated cautiously...
Covid 19 has brought us its share of annoyances but has also opened up the fields of possibilities to everyone: employees, civil servants, liberal professions, shopkeepers, employers can telework. Some people talk about a digital revolution, others about the dematerialisation of the place of execution, but in reality it is a means of promoting the quality of life at work while minimising company costs.
A brief history.
The first studies began in 1970 in the United States. American Telephone & Telegraph (ATT), which is the main American telephone service provider, predicts that most Americans will be working from home by 1990! In France, this was first mentioned in a report on computerisation in 1978. At that time, it was referred to as work carried out in a delocalised manner so that the said activity required the intensive use of telecommunications means.
The legal framework in France.
In 2012, Article L 1.222-9 of the Labour Code introduced telework as any form of organisation in which work that could have been performed on the employer's premises is carried out by an employee away from the employer's premises, on a regular and voluntary basis, using information and communication technologies within the framework of an employment contract or an amendment thereto. Two major principles are thus announced: the teleworker is considered as a fully-fledged employee, telework is based on voluntary work and the refusal to telework cannot lead to the termination of the employment contract. However, in the event of an epidemic or force majeure, the implementation can be considered as an adjustment of the workstation made necessary to allow the continuity of the company and to guarantee the protection of employees. However, in such cases, the employee cannot refuse the implementation of telework.
Five years later, the order of 22 September 2017 on the predictability and security of labour relations revises its concept as follows:
- The words "on a regular basis" are deleted. In other words, occasional and regular teleworking are no longer distinguished;
- removal of the obligation of a rider or employment contract: telework can be formalised by a collective agreement or by a charter drawn up by the employer;
- recognition as an "accident at work" of any accident occurring during working hours;
- a right to telework is also recognised, so that the employer must give reasons for refusing to give his subordinate the right to organise the execution of his employment contract as he wishes.
The special case of the civil service.
This is the reign of article 133 of the law of 12 March 2012 on the reform of the civil service. It strictly provides for the following: "Civil servants covered by Act no. 83-634 of 13 July 1983 on the rights and obligations of civil servants may carry out their duties within the framework of teleworking as defined in the first paragraph of Article L. 1222-9 of the Labour Code. "It is granted at the request of the civil servant and after a decision by the head of department, it is terminated at any time, with notice. Civil servants, non-civil servants and magistrates "teleworkers" benefit from the rights provided for by the legislation and regulations applicable to civil servants exercising their functions on the premises of their public employer. »
It was supplemented by the decree of 5 May 2020 amending the decree of 11 February 2016 on the conditions and procedures for implementing teleworking in the civil service and the judiciary. These main provisions are indeed more precise, but it was actually a necessity: "Teleworking can be organised at the agent's home, in another private place or in any place for professional use. An agent may benefit from these different possibilities under the same authorisation [...] The teleworking authorisation is issued for regular or occasional teleworking. It may provide for the allocation of fixed teleworking days during the week or month and the allocation of a number of floating teleworking days per week, month or year, the use of which the staff member may request from the authority responsible for managing his leave. "These different modalities can be implemented under the same authorisation.
Disabled employees, pregnant women and those whose state of health justifies it may derogate from these arrangements at their request and benefit from a weekly teleworking quota greater than the three days under ordinary law, for a maximum period of six months, and after the opinion of the Preventive Medicine Department or the occupational physician; this derogation is renewable, after the opinion of the Preventive Medicine Department or the occupational physician. Another possible derogation, "when a temporary telework authorisation has been requested and granted due to an exceptional situation disrupting access to the service or work on site." Telework is granted upon written request by the staff member, and a certificate of conformity "to the technical specifications" of the facilities at the staff member's home or other private place is required; the necessary job accommodation must be implemented by the hierarchy. However, "the head of department, territorial authority or appointing authority shall assess the compatibility of the request with the nature of the activities carried out and the interests of the service. "A written reply to this request must be given within a maximum of one month, and "this form of work organisation may be terminated at any time and in writing, at the initiative of the administration or the employee, subject to a two-month notice period [...] Refusal of a request for telework authorisation and the interruption of telework at the initiative of the administration must be justified and preceded by an interview."
What financial assistance?
The employer should be compensated for the work to be carried out when taking in a person with a disability. In the three civil services, the Fund for the Integration of People with Disabilities in the Civil Service (FIPHFP) is granting a €1,000 subsidy in the context of the current Covid-19 pandemic to promote home-based work for disabled staff who were not teleworking before the start of confinement on 16 March 2020. This aid covers the purchase of computer equipment and remote connection. For the private sector, Agefiph is offering a grant of the same amount of €1,000 to finance the equipment needed for the workstation (computer equipment, office headquarters, costs linked to the transport of equipment, additional cost of Internet connections). These grants do not cover the provision of the premises and therefore the work on the premises, nor do they cover costs related to the workspace such as heating and electricity. Any study of a teleworking position is free of charge and is carried out by the service providers chosen by the FIPHFP and Agefiph. In the case of Agefiph, the service provider carrying out the study also defines the amounts to be retained for the organisation's coverage, identifying what is covered by disability compensation.
Gains linked to teleworking.
It is important to note that the move to work allows disabled workers to better manage their daily lives and avoid the loss of time in transport, as well as the difficulties linked to (in)accessibility. It opens up the possibility of living away from the workplace in cheaper housing than in city centres, with flexible working hours and greater autonomy in managing tasks. And of course a better work-life balance. However, this development is not without risks. Teleworking can generate social isolation, professional demotivation especially among young people as this survey carried out during the confinement, confusion between professional and private life, and working hours being exceeded.
So we telework, yes, but we work!