The national protocol is clear:
« teleworking time is increased to 100% for employees who can perform all of their tasks remotely. In other cases, the organization of work must make it possible to reduce travel between home and work and to adapt the time spent in the company for the performance of tasks that cannot be performed remotely, to reduce social interactions ».
However, this text, as recalled by the Council of State, is not legally binding (but could be taken into account by the judge if the employee invokes the non-respect by the employer of his safety obligation of result).
An instruction from the Directorate General of Labor of November 3, 2020 sheds useful light by giving examples of situations in which 100% teleworking is not possible such as:
« Managerial functions requiring a minimum presence on site to supervise teams whose activities cannot be carried out remotely »
« activities for which the employee needs to access certain tools, particularly IT, that cannot be accessed remotely »
The instruction specifies that according to the administration, the mere fact of wanting to organize meetings, even managerial ones, cannot justify not teleworking, since these meetings can easily be carried out by audio or video conference.
The instruction also reminds that it is up to employers to determine which tasks can be performed by teleworking
The employer must therefore determine which employees can telework, and in what proportion, and this on the basis of objective criteria, which must be clarified at the request of the labor inspectorate or in the event of a labor dispute.
Finally, it is interesting to note that the aforementioned instruction indicates that if the manager perceives a particular psychosocial risk, recourse to telework or the methods initially adopted may be reviewed.
The employer must therefore skillfully juggle between psychosocial risk and risk associated with working on site.