Do labor inspectors really have the means to enforce the rules of teleworking?

Deserted offices in a La Défense tower near Paris. – Nicolas Raffin / 20 Minutes

  • The government has been recalling for weeks that teleworking is an “obligation” to slow down coronavirus contaminations.
  • In fact, many companies are still reluctant to apply the guidelines.
  • Two unions of labor inspectors point to the lack of legal and human resources.

For weeks, the government has been showing its firmness on the issue of teleworking. The minister in charge of the file, Elisabeth Borne, tirelessly repeats in each interview that companies must play the game and not bring their employees into the offices, in order to limit the risks of Covid-19 contamination. However, his request remains ignored by many employers.
According to official figures from the Dares relating to the month of February, employees are “less and less likely to have been [en télétravail] all week (31% of them (…) after 34% in January, 39% in December and 44% in November) ”.

The executive therefore multiplies the instructions to try to reverse the trend. Thus, on March 18, the Ministry of Labor sent a letter to all the prefects asking them to “strengthen the effectiveness of the use of telework” by putting pressure on companies. And last Friday, a press release from rue de Grenelle explains that the ministry asked labor inspectors to “strengthen their controls”.

Not enough power?

The balance sheet? “Since the beginning of the year, the inspection agents have carried out nearly 24,000 checks in connection with the application of health measures to fight against the epidemic and sent 34 formal notices, when reminders of the law do not were not enough, ”explains the ministry. Which also specifies that “90% of formal notices have been followed up by employers”.

But for Simon Picou, CGT representative at the Ministry of Labor, this communication is misleading. “The government announces the increase in controls. Suddenly, many employees contact us because their company does not respect the instructions on teleworking. We must then explain to them that we do not have all the powers, ”he told 20 minutes.

Indeed, “the inspector has no direct sanctioning power in the event of non-compliance with teleworking,” confirms Sophie Poulet, Sud-Travail union representative. This requires a formal notice. And if an employer does not respect it, he risks a fine of 3,750 euros ”. Not necessarily very dissuasive.

Indirect threat

The two unions (South and CGT) are therefore calling for a new law providing for criminal penalties for non-compliance with teleworking. At first glance, there is indeed a legal vacuum on the question, as 20 minutes explained it to you in a previous article. Indeed, no law obliges companies to have their employees work outside the office. On the other hand, as the Council of State recalled in its ordinance of October 19, 2020, the health protocol drawn up by the Ministry of Labor “requires” the employer to review “the organization of work”.

This therefore poses two indirect threats of sanctions on recalcitrant employers. First, “companies that decide to ignore the health protocol [et donc du télétravail] or to apply it only “softly” take the risk of legal action taken in summary proceedings by the unions with a view to suspending the activity on site while waiting for preventive measures to have been taken “, explains on his site lawyer Benjamin Louzier.

Moreover, as another lawyer, Michel Ledoux pointed out, in an interview published on the site “Legislative Editions”, “an employee whose occupational disease linked to Covid-19 has been recognized and who would be able to demonstrate that telework had not been sufficiently generalized in his company while his position was lending to it could lead a judge to recognize the inexcusable fault of the employer ”.

Lack of staff

“In most situations, we manage to obtain results through persuasion,” Sophie Poulet nonetheless recalls. But faced with recalcitrant employers, a clear rule and sanctions would allow us to be more effective ”. The union representative also recalls that many labor inspector positions – around 13% of the workforce – remain vacant.

This lack of human resources can prove to be detrimental at a time when the government is asking for more checks. “If the government’s objective is to massify teleworking and to really force companies to do so, in this case, we need suitable legal tools,” concludes Simon Picou.

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