The lockdown requires people to work at home where possible throughout the country. This new organisation for employees and companies is likely to generate costs that can be classified as business expenses under certain conditions. Update on the various impacts for companies and employees.
In his address on 14 March 2020, the Prime Minister, Edouard Philippe, announced the closure of all public venues which are not essential for the running of the country.
All employers have consequently had to rethink the arrangements relating to the organisation of their employees’ work by imperatively implementing home working where possible.
In principle, home working must be introduced by a collective agreement or, failing which, a charter drawn up by the employer after notification of the Social and Economic Committee. If there is no collective agreement or charter, the employee and the employer may agree to home working by mutual agreement, which can be formalised by any means. In any event, it is recommended that the implementation of home working be governed by a written document such as a clause or amendment to the employment contract.
However, faced with the Coronavirus epidemic, the procedures for introducing home working are considerably relaxed. In the event of exceptional circumstances, including in particular the threat of an epidemic, Article L.1222-11 of the French Employment Code authorises the employer to introduce home working unilaterally, without obtaining the consent of employees.
The implementation of home working in this context is consequently not subject to any specific formal requirements. In this situation, home working is considered to be an adjustment to the job made necessary to enable the company to continue operations and ensure employee protection.
Since Order 2017-1387 of 22 September 2017, the Employment Code no longer provides for an obligation for the employer to bear all costs arising directly from home working. However, this legislative change does not mean that the employer is exempted from any obligation in this respect.
Article 7 of the Inter-Professional National Agreement of 19 July 2005, which continues to apply to companies which are not covered by a collective agreement on home working, provides that the employer shall in all cases bear the costs directly generated by home working, including in particular communication costs.
In practice, the employer consequently continues to be obliged to provide equipment to employees to enable them to work at home (computer, Internet connection, heating, electricity, etc.) and to bear the cost thereof, as well as to ensure the maintenance thereof.
With regard to the social security regime applicable to these costs, the costs incurred by the employee working at home shall be classified as special expenses inherent to the position or duties. The employer must accordingly be able to justify that the business expenses were actually refunded and the amount of the business expenses incurred in the event of an audit.
However, if the employer awards a fixed allowance or bonus, without making its payment subject to the employee working at home producing proof, this additional remuneration must be subject to social security contributions under the same conditions applicable to the salary.
From a tax standpoint, the employee is entitled to question his/her new costs incurred as a result of home working.
When drawing up his/her annual income tax return, each employee in the tax household has the choice between the automatic flat-rate 10% deduction or, on option, the deduction of actual expenses.
The flat-rate 10% deduction applies without justification and covers business expenses such as commuting expenses from home to work, meal expenses at the place of work and documentation expenses. Calculated based on the gross salary (minus social security contributions), it amounts to at least €441 and at most €12,627 in 2019.
If the employee’s actual business expenses are higher than the flat-rate 10% deduction, it may be in the employee’s interest to claim a deduction based on actual expenses, in particular since this amount is not capped.
In order to be deductible, the expenses paid by the employee during the year of acquisition of his/her income and required to perform his/her job, must be justified. A detailed list will be included in the appendix to the online income tax return and the corresponding supporting documents (invoices, receipts, certificates) will have to be kept for three years in order to be able to produce them on request by the tax office.
In the scope of home working, the expenses which can be recorded primarily relate to the home. A tenant occupying part of his/her home for work may consequently deduct a portion of his/her rent in proportion to the occupied surface area. He/she also has the option to deduct a fraction of his/her expenses (heating, electricity, telephone, internet subscription) as well as her/her office supplies, documentation, and office equipment, within the limit of their professional use.
In the event where the employer has just compensated the employee for all or part of these expenses, the employee's choice to opt for the deduction of actual expenses incurred implies the obligation to add all of the allowances for special employment expenses to his/her gross taxable income, regardless of the form (refund of expenses on production of proof or flat-rate allowances).
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