[updated version of an article initially published on 29 October 2020]
In March 2020, many companies had to implement teleworking unexpectedly and on a large scale for the first time. Currently, teleworking is mandatory for all companies except when it is impossible because of the nature of the employee's function or in order to ensure the continuity of the company.
The "corona teleworking" which suddenly appeared has no legal framework, because the existing frameworks only apply to voluntary teleworking. Despite the good faith of all affiliated parties, some very concrete problems have arisen, including with regard to working hours and availability, monitoring and costs associated with corona teleworking. Already in March 2020, the Federal Public Service Employment advised entering into pragmatic agreements between employer and employee on these subjects. In any case, the employer will be obliged to make the necessary supporting means and materials available to its employees, unless employer and employee agree otherwise. Currently, corona teleworking does not create any acquired rights to teleworking for the post-corona era.
In many companies, the question arises whether the old normal, where everyone works at the office as a matter of principle, will ever return. Or whether the experience of corona teleworking will lead to a more flexible work organisation, to the advantage of both employer and employee, in which structural or at least occasional teleworking has its own place.
Structural teleworking is regulated extensively by CLA No. 85, which imposes a number of obligations. We will mention only a few here:
- The employer and the employee have to conclude an (individual) agreement with a number of mandatory requirements. This can be done through an addendum to the employment agreement.
- Social consultation (with the employees' representatives in accordance with CLA No. 9) and individual information for the individual employee are necessary.
- The employer is responsible for the necessary equipment and must bear the costs of connections and communication. It is not possible to agree otherwise.
It is advisable to establish a general framework (policy) at company level, in which the rights and obligations of the parties are specified. The individual agreement can then refer to this policy.
What should you do in the coming weeks?
- Review the agreements made on corona teleworking in the light of the experiences of the past months. Document these agreements.
- Consider whether structural teleworking can be integrated into your business operations.
- Stick with corona teleworking for the time being in order to avoid establishing acquired rights. In the meantime, test some principles for possible future structural teleworking, e.g. regarding availability, working hours and monitoring, compensation and well-being.
Do you need assistance with the legal framework for corona teleworking or structural teleworking? We will be happy to assist you.
