CMS Expert Guide to mobile working

Yes. Since 2017, work from home is regulated by the Labour Code (Articles 1222-9 et seq.).  

Furthermore, we also refer to case law and to a national muti-industry agreement from 2005 (i.e. ANI) to resolve practical questions. The collective bargaining agreement applicable to the industry sector of the company may also provide for specific provisions. 

Yes. Remote working is regulated in art. 13 of the Spanish Workers' Statute and in Royal Decree-Law 28/2020 of 22 September on remote working.

Remote working regulations apply to all employees who are teleworking on a regular basis – i.e. providing services on remote at least 30% of their working time in a reference period of 3 months. 

These special regulations do not apply to employees who do not provide remote services on a regular basis as well as those who provide services remotely as a measure of health containment derived from the COVID-19. 

That said, this last group of employees should be provided with necessary equipment and tools for providing services on remote – as well as their technical maintenance – and compensation of expenses (if any) should be agreed through collective bargaining. 

Work from home is flexible. It can be implemented by a company-level agreement concluded with trade unions or by a policy unilaterally issued by the employers and subject to the opinion of the works council (if any). 

In the absence of a company agreement or policy, it is also possible to conclude an individual agreement with the concerned employee. 

In any case, it is highly recommended to set terms and conditions in writing to clearly define the parties' obligations.

Remote working cannot be imposed unilaterally by the company or by the employee, it should be agreed between both parties. 

In order to do so, and before beginning to work remotely, a written agreement must be formalized and be attached to the employment contract. This agreement should regulate, among other things:

• An inventory of the resources, equipment and tools necessary for providing services;
• Expenses in which the employee may incur, as well as how this should be calculated;
• Term of the remote working arrangement and notice periods for reversing it;
• Percentage and split between on-site and remote working;
• The company's control measures;
• The employee's chosen remote working location.

Moreover, the company will provide the employees' representatives with copies of all remote working agreements and details of all actions taken. Once the above has been done, said copies will be sent to the employment authority. 

In principle, work from home must be done on a voluntary basis. Therefore, the employer cannot terminate the employment contract if the employee refuses to work from home. 

However, in case of exceptional circumstances, such as a pandemic, work from home can be imposed as a necessary measure for the continuity of business and the protection of employees' health and safety (Article L. 1222-11 of the Labour Code). 

No. Remote working is voluntary and reversible for the employee and for the company. 

No, the employer must accept the request of the employee to work from home.

However, WFH has become a right since 2017. As a result, when an employee asks to work from home, the employer's refusal must be justified by objective grounds (Article L. 1222-9 of the Labour Code): technical impossibility, disorganisation of business, etc. 

No. 

However, when an employee asks to work from home due to child care, the employer's refusal must be justified on objective grounds (Article 34 SWS), such as technical impossibility and potential business disorganisation.

Work equipment might be the property of the employee or be made available by the company. 

However, when work from home is imposed by the employer, he must provide the employee with the necessary tools.

Yes. Employees are entitled to adequate provision and maintenance of all the necessary resources, equipment and tools. Also, the company should provide technical assistance when needed. 

In its Q/A issued during Covid-19 lockdown, the Government provided that:

1. The employer is only responsible for the costs incurred by the employee while he works from home if the company agreement or the policy provides for this obligation. 
2. The employee's usual catering rights are maintained (e.g. the lunch meal).

However, in our opinion, this position might  be challenged in light of the fact that according to the 2005 national agreement and case law the employer must reimburse the employee with any and all  expenses incurred during WFH (Supreme Court, 25 February 1998, n°95-44.096).

In any case, the expenses can be reimbursed as a lump-sum to the employee, within a limit of €.10 per month for an employee working from home once a week. 

Yes. The company must assume expenses related to the resources, equipment and tools necessary for the provision of services. These costs cannot be borne by the employee.

Case law considers that the employee must benefit from an "occupancy allowance" when the company does not have premises where the employee can work and therefore the employee is de facto obliged to work from home (Supreme Court, 8 November 2017, n°12-19.667). 

This WFH allowance should be limited to this specific situation. When WFH is optional and voluntary (as it is in most cases), this extra indemnity is not due. (Only reimbursement of expenses are due).

No, even if for simplification purposes it is usual practice to agree a fixed allowance as compensation of expenses. 

The employer is also subject to a duty of care regarding the employee's  health and safety while working from home. 

In this context, the employer must ensure that the employee's home workspace and equipment are appropriate to safely perform all duties. 

Furthermore, the employer must prevent employee isolation, control workloads and ensure a balance between the worker's private and professional lives (Articles 6 and 9 of the 2005 ANI). 

To do so, the Labour Code notably provides for the obligations (i) to meet at least once a year to discuss the workload and working conditions and (ii) to set down the times of day when the employee can be contacted (Article L. 1222-10). 

Yes, employees rendering services from home must be entitled to the same health and safety level of protection as employees working on-site. However, risk assessment and planning of preventive activity should be adapted to specific remote working risks.

The employee working from home has the same rights as an employee working in the company's premises, notably in terms of collective rights.

The employer has the obligation to track working time through the working time registry – without prejudice to the greater time flexibility that may be involved in the development of remote working.

Also, the employer should guarantee downtime. This implies, amongst others, limiting the use of work-based communication technologies during rest periods. Following consultation with the employees' representatives, companies must draw up an internal policy aimed at ensuring and raising awareness of the right to digital downtime.

Yes, the employee must be covered by insurance for his professional activity, as well as for the material and equipment made available by the company.

Remote employees do not need to be covered by any specific insurance policy. 

That said, certain CBAs set forth collective insurance policies that companies must hire in favour of its employees. If that was the case, remote workers should be covered by the relevant insurance as the rest of employees. 

Yes, the employee benefits from the specific regulation applicable to work-related accidents and illnesses (Article L. 1222-9 of the Labour) if an accident occur while working from home.

Yes, benefits arising from work-related accidents and illnesses apply if an accident occurs while the employee is working from home. However, to be considered a work accident, the event must take place while the employee is performing work-related services.

No.

Before removing any expenses compensation paid by the company, it should be analysed if it possible to do so or if these amounts should be considered as salary which cannot be unilaterally removed. In the first scenario it would be possible to agree compensating these two amounts, but not in the second one. 

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The employee should use IT devices provided by the company according to the company’s criteria for their use. 

In November in France, employers’ and employees’ trade unions will begin to negotiate a new national cross-industry agreement covering all eventualities of work from home (e.g. which positions are eligible, whether and for how long one may work abroad, the number of days one may work from home in any given period …).

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