Containment is an unprecedented period for many workers and companies. Labor law has had to adapt: the government has issued several orders to clarify the outlines of the rights and duties that are now imposed on all. Le Figaro takes stock, answering fifteen questions that you sent us.
Manage telework
"What should I say to an employer who harasses me with emails and waits for" returns "after placing me on short-time work? "Partial unemployment leads to the suspension of the employment contract, but two situations must be distinguished:
You are in total partial unemployment: your company has suspended all your activities. You are then entitled to refuse to work, if your employer requests you during this period.
You are in “half” of partial unemployment: the company can alternate during the week the days of telework and the days of inactivity for partial unemployment. But it has to be clearly stated. You should only work on the scheduled days. Outside, you have the right to refuse the work requested.
If your employer asks you to work when you shouldn't, keep all the written evidence (emails). You can then write a written letter (LRAR) to your employer reminding him of the suspension of the employment contract. You can also inform your CSE, or alert the labor inspectorate.
Mathilde Hardy, labor law expert for Cadremploi
“What happens in the event of a telework accident at work? "“The accident at the place where teleworking is carried out during the exercise of the teleworker's professional activity is presumed to be a work accident, according to article (L-222-9) of the Labor Code. The accident will therefore be covered under the same conditions as a work accident that has occurred in the company: the employee will benefit from a work stoppage.
In case of doubt as to the occupational origin of the injury, the primary fund or the employer must demonstrate that it originated in a cause totally unrelated to the job.
Mathilde Hardy
“I am a school teacher. What are the State's obligations towards its officials for the organization of telework? "Teaching staff (full-time, contractual or equivalent) exercise their functions by using ENTs, equivalent digital devices or any other means to ensure educational continuity. Each school teacher must take "all useful measures to ensure pedagogical continuity with the pupils, in conjunction with the parents" (Vademecum of pedagogical continuity dated March 20, 2020). The state must therefore ensure that the public servant is able to telework. Otherwise, he must place it in ASA (special leave of absence).
Mathilde Hardy
“In order to telecommute, I invested in equipment. Can I request participation from my employer? "Yes, you can request participation from your employer, but the latter has no legal obligation to grant your request. The Macron order of September 22, 2017 removed this obligation.
Today, the employer can assume the costs arising directly from the exercise of telework, which implies in particular the cost of hardware, software, subscriptions (telephone, internet ...), but this assumption does not is no longer an obligation, it results from his good will. On the other hand, the collective agreement or the charter on teleworking in the company may provide for reimbursement by the employer.
Mathilde Hardy
"In the event that the employer refuses to put his employees in telework when it is possible, what should be done? "In principle, teleworking is the result of an agreement between the employer and the employee on the basis of either a collective agreement or a charter drawn up after the opinion of the social and economic committee. In this context, the employer who refuses telework must justify his response.
In the absence of agreement on teleworking, this obligation to motivate the employer is not provided for. Current circumstances are reshuffling the cards by putting security issues at the center of concern. Without being able to provide a definite answer to the question asked, if an employee is not offered telework when he has reasonable grounds to believe that the situation presents a serious and imminent danger, he may exercise his right of withdrawal according to the applicable law.
Emmanuelle Barbara, partner - Senior Partner of the August Debouzy law firm
Understanding partial unemployment
"Will people on partial unemployment really get 100% of the salary as announced by the president?" Or will they only be entitled to 85% of their salary? "The decree of March 25, 2020 is clear: “ The indemnity due to the employee covers at least 70% of his previous gross compensation (as used to calculate the indemnity for paid holidays), or approximately 84% of the net salary. In all cases, a minimum of € 8.03 per hour is respected. "
The compensation will be capped at 4.5 X the minimum wage (= € 6,280.00 gross). However, nothing prevents an employer from compensating its employees beyond 70% of the gross salary if it can / wishes or if a collective agreement or a company agreement provides for it. In this case, the employer will do so at his own expense. The basis for calculating the partial activity allowance takes into account: the gross salary, the overtime increases, work on Sunday or night work, the benefits in kind which the worker no longer enjoys, the variable part of compensation, and commissions.
This compensation is exempt from social charges. However, it is subject to CSG / CRDS and Income Tax. It is paid by the employer on the normal pay date. It is specifically mentioned on the pay slip and specifies the number of hours compensated.
Eva Touboul, lawyer
"I am a childminder for private individuals, what are my rights? "You are entitled to compensation for partial activity for employees employed at home mentioned in article L. 7221-1 of the Labor Code, such as cleaning women in private homes. It suffices that the individual employer completes a specific compensation form by declaring the number of hours not worked by his employee, corresponding to the non-working hours.
The hourly compensation paid by the employer to the employee employed at home is equal to 80% of the net remuneration provided for in the contract. This compensation will be reimbursed in full to the employer by URSSAF according to terms to be fixed by decree. It is exempt from social security contributions.
Mathilde Hardy
“Are restaurant tickets maintained in the event of partial unemployment? "Partial unemployment leads to the suspension of the employment contract. Non-working hours cannot be considered by the employer as working time: employees must not be present at the workplace and the employer cannot demand that employees remain at his disposal.
Consequently, meals are no longer taken at his workplace. Restaurant vouchers can therefore be suspended by companies during partial unemployment.
Mathilde Hardy
"Do employers have the right to impose days off for their employees during the confinement period?" "Yes, exceptionally and in the context of the covid-19 crisis, an order of March 25, 2020 allows the employer to impose days off for employees.
This faculty, which derogates from the rules related to this context, is framed by the respect of the following two conditions. First, the employer may decide to take paid vacation days acquired by an employee or may unilaterally modify the dates for taking paid vacation, provided that this is provided for by a company or branch agreement. Then, within the limit of 6 days, the days of leave imposed must comply with a deadline of 1 clear day and that the period of leave imposed or modified does not exceed December 31, 2020.
Emmanuelle Barbara, partner - Senior Partner of the August Debouzy law firm
When work is essential despite everything
"In the factory, does wearing a surgical mask replace the distance rule? "It is not the employer's responsibility to guarantee the absence of any exposure of employees to risks, but to avoid them as much as possible, and therefore to take all useful measures to protect exposed workers. To date, the government has posted advice sheets for certain trades providing the protective measures to be put in place, but factory trades are not one of them. The basic prevention and safety rules should therefore be applied.
Thus, wearing a mask is not a measure recommended by the government outside the medical sector and the shortage of stocks clearly makes it impossible to equip all employees with masks. In any case, the "barrier measures" must always be respected, including the rule of one meter, mask or not. "
Anna Milleret-Godet, lawyer at Cohen & Gresser
