Better protection for teleworkers from occupational accidents
In a working world with rapid technological change and in which mobility is an increasing issue, telework is increasingly seen as a viable option and so more employees are demanding the opportunity to work remotely as part of their “employment package”. However, until recently the legislation on occupational accidents still contained a number of gaps in which the teleworker was not as protected as regular employees working at their employer’s premises. This situation has now changed as the legislator intervened at the end of 2018 to address them. The new provisions came into force on 27 January 2019.
What has changed?
The new legislation has sought to:
- Insert into the law’s scope of application a telework definition that includes both structural and occasional telework;
- Apply to occasional telework the rebuttable presumption that any occupational accident occurred under and during the performance of the employment contract;
- Introduce the notion of “accident on the way to work” for teleworkers.
New definition of telework in the legislation on occupational accidents
A distinction exists between (i) occasional telework, i.e. telework upon which the employee can rely upon for force majeure or personal reasons but not in a regular manner, and (ii) structural telework, i.e. telework that is performed regularly (e.g. every Friday). Both types of telework are governed by different legislation and therefore do not meet the same conditions, more specifically formalistically.
In the framework of the legislation on occupational accidents, telework is now defined in such a way that it includes both types of telework to ensure that employees benefit from the same guarantees.
Rebuttable presumption that an occupational accident occurring under and during the performance of the employment contract now also applies to occasional telework
In principle, any occupational accident happens when the accident occurs under and during the performance of the employment contract.
When the employee works on the employer’s premises, it is usually easy to demonstrate that such conditions have been met. For a teleworker, on the other hand, because he or she performs his/her work at home, it is more difficult to distinguish personal time from working time and prove that the accident occurred under and during the performance of the employment contract.
A first attempt to redress this gap was adopted in 2009 when the legislator introduced a rebuttal presumption that the accident occurred during the performance of the employment contract provided that it occurred on the premises chosen for the work performance and during the period of the day agreed in writing. It was thus limited in space and time and subject to the condition that that had been agreed in writing. This last condition proved to be problematic for occasional telework, where a written telework contract is not mandatory. For any accident arising during occasional telework, this situation meant that teleworkers had a bigger burden of proof to prove the necessary conditions had been met.
Following the new legislation, any accident happening to the teleworker will be presumed to have happened under and during the performance of the employment contract:
- If it occurs at the place or places stated in writing as the place of work, in a teleworking agreement or any other written document authorising telework, whether structurally or occasionally, collectively or individually. In the absence of such a written statement, the presumption will apply to the place(s) where the teleworker usually performs his/her telework; and it is therefore always best to approve or at least confirm occasional telework and its modalities in writing (by e-mail, text, etc.); and
- If the accident happens during the period of the day stated in one of the written documents as the period during which work can be carried out. In the absence of such a statement in writing agreement, the presumption will apply during the working hours that the teleworker would have to perform if he/she were working at the employer’s premises.
“Accident on the way to work” also for home teleworkers
The legislation on occupational accidents also applies to accidents that occur to the employee on his/her normal way to and from work. Such a normal work journey also includes, for example, possible detours that he/she might make to bring or collect his/her children to or from school or to purchase groceries.
Until the recent legislative amendment in question, there was no “work journey” for teleworkers working from home, and he/she was therefore not covered by the legislation on accidents at work when he/she too left home to pick up his/her children or to pick up a meal for lunch.
From now on, when an employee teleworks from home, his/her journey from his/her home to the daycare centre or school or to the place where he/she obtains his/her meal (and vice-versa), is considered as a work journey for the purposes of the legislation on occupational accidents.
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