New Ways of Working

Explore and keep track of key legal and compliance considerations for multinational employers as new ways of working become increasingly embedded as the pandemic begins to recede. Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.

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01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

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France

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The first French law on teleworking was adopted on 22 March 2012. It was subsequently modified by an ordinance dated 22 September 2017. Today, three articles of the labour code cover the implementation and the functioning of teleworking (articles L. 1222-9 to L. 1222-11). In addition, two national collective agreements were concluded between employers' representatives and trade unions in 2005[1] and 2020.[2]

The definitions of teleworking given by article L. 1222-9 and by the agreement of 19 July 2005 provide that the rules on teleworking only apply to employees with an employment contract. These rules do not apply to self-employed workers.


[1] National collective agreement on Teleworking – July 19, 2005

[2] National collective agreement for a successful implementation of teleworking – November 26, 2020

Last updated on 21/09/2021

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Italy

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Italian employment law provides – within the framework of employment relationships – for two different ways of working outside the company premises: Teleworking (that is, “Telelavoro”) and Smart Working (that is, “Lavoro Agile”). Neither of them entails a new type of employment contract, but simply a different way of performing the work.

In particular, Teleworking is a way of regularly carrying out work outside the company premises but in a fixed workplace, which is normally at the employee’s home. In the private sector, it is regulated by: a) the European Framework Agreement on Telework dated 16 July 2002; b) the National Collective Bargaining Agreement dated 9 June 2004 for the transposition of the Framework Agreement (hereinafter “CBA 9 June 2004”) and c) the National collective bargaining agreements.

Instead, Smart Working is a way of carrying out work partly inside the company premises and partly outside, without any fixed location. It is regulated by articles 18 - 24 of the Law no. 81/2017.  Italian employment law defines Smart Working as an agreement between the parties without any constraint in terms of working hours or workplace, along with the possible use of technology to enable the work activity to be performed. Therefore, Smart Working, differently from Teleworking, is not constrained to any specific place and work can be performed both inside or outside company premises - with no fixed location.

During the Covid-19 pandemic the Italian Government chose Smart Working as the “main way of working” to fight the spread of the virus and, in some cases, recommended working remotely whenever possible. Considering, the ample diffusion of this way of working, any reference to remote working below shall be understood as Smart Working.

In particular, since March 2020 employers have been allowed to implement Smart Working unilaterally (i.e., without signing any agreement with the employee). Moreover, multiple provisions have been issued during this emergency period specifying the categories of workers that are entitled to work remotely (Smart Working) or have priority to access that way of working, should it be possible for the duties assigned to be performed remotely and depending on the company’s need. Indeed, those categories mainly refer to “vulnerable workers”, such as severely disabled workers and those in possession of specific certificates attesting a risk condition deriving from immunodepression, oncological pathologies or life-saving therapies and parents of disabled children.

Independent contractors or gig economy workers are not included in these specific provisions.

Finally, recently the Italian Government introduced a piece of legislation expressly providing for the right of remote workers to disconnect from IT tools and platforms, without prejudice to the agreements signed and “availability slots” agreed with the employer.

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 21/09/2021

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Switzerland

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Swiss labour law, in particular the Swiss Code of Obligations, does not contain any specific rules regarding remote working. Remote working is governed by the general rules of labour law and, in particular, by the will of the parties to the employment contract (ie, employers and employees).

However, the Federal Act on the Statutory Principles for Federal Council Ordinances on combating the Covid-19 Epidemic (covid-19 Act) provided the Federal Council with a legal basis to implement remote working, should the need arise. The Federal Council made use of this provision and made remote working mandatory from 18 January 2021 to 26 June 2021 and again from 20 December 2021 onwards. In theory, mandatory remote working is set to end on 24 January 2022, but this measure could be extended if the Federal Council deems it necessary.

The remote-working obligation concerns all workers, provided that remote working was possible and did not lead to exorbitant costs. Employers are responsible for making sure that appropriate organisational and technical measures were in place.

Additionally, even between 26 June 2021 and 20 December 2021, when remote working was no longer obligatory, but rather merely recommended, an exception existed for employees at risk, including pregnant individuals and persons who cannot be vaccinated for medical reasons.

It also should be noted that on 10 June 2021, a motion was introduced in Parliament that would enact provisions covering remote working (eg, definitions, scope and issues related to health and safety and work and rest periods); this motion has been sent to committee for an initial review.

In conclusion, except for the Federal Council's decree requiring remote working between January and June 2021 and from 20 December 2021 onwards, no specific legal provisions govern remote working in Switzerland. 

Last updated on 20/01/2022

02. Outline the key data protection risks associated with remote working in your jurisdiction.

02. Outline the key data protection risks associated with remote working in your jurisdiction.

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France

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Employers must ensure the protection of their company’s data but also of employees’ data.

According to article L. 1222-10 of the French labour code, the employer must inform the teleworking employee of the company's rules regarding data protection and any restrictions on the use of computer equipment or tools. Once informed, the employee must respect these rules.

The collective national agreement of 26 November 2020, provides more details in article 3.1.4. It is the employer's responsibility to take necessary measures to protect the personal data of a teleworking employee and the data of anyone else the employee processes during their activity, in compliance with the GDPR of 27 April 2016 and the rulings of the National Commission for Technology and Civil Liberties (the CNIL).

The CNIL said in its 12 November 2020 Q&A on teleworking that employers are responsible for the security of their company's personal data, including when they are stored on terminals over which they do not have physical or legal control (eg, employee's personal computer) but whose use they have authorised to access the company's IT resources.

The National Agreement of 26 November 2020 recommends three practices:

  • the establishment of minimum instructions to be respected in teleworking, and the communication of this document to all employees;
  • providing employees with a list of communication and collaborative work tools appropriate for teleworking, which guarantee the confidentiality of discussions and shared data; and
  • the possibility of setting up protocols that guarantee confidentiality and authentication of the recipient server for all communications.
Last updated on 21/09/2021

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Italy

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Data security requirements applicable to all employees working at the company premises continue to apply to employees working remotely. The main risks are linked to the transmission of company data outside the company premises, in places not necessarily identified. Therefore, additional data protection precautions should be taken to protect the confidentiality of transmitted data by drafting specific policies.

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 21/09/2021

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Switzerland

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Employers are required to respect the general Swiss data protection principles and rules. In particular, the Swiss Code of Obligations (SCO) states that the Federal Act on Data Protection (FADP) applies to the handling of employer personal data. The term "personal data" is defined as any information relating to an identified or identifiable person (individuals and companies).

Employers must ensure the security of the data they process. They must take appropriate organisational and technical measures to protect personal data against unauthorised processing or access, such as accidental or unauthorised destruction, loss, technical errors, falsification, theft, unlawful use, alteration, copying or any other undue processing. Moreover, employers also must control access and operations undertaken by employees.

One particularity of remote working is that employees' workstation and business data are located off sites. Meaning that third parties potentially could access this data.

To prevent data protection breaches, employers must institute appropriate technical and organisational measures and raise employee's awareness of data protection risks. These measures may include securing information systems, setting up authorisations and limiting access to concerned employees, and using a VPN. In addition, employees also should be made aware of the risks and procedures through in-house training and user manuals for the IT and security systems.

Last updated on 30/09/2021

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

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France

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The rules for monitoring employees do not differ between teleworkers and office workers. Thus, like any employee, teleworkers must be informed in advance of the methods and techniques used to monitor his or her activity (article L. 1222-3 of the labour code).

The implementation of a device allowing the control of the employee's working time must be justified by the nature of the task to be performed and proportionate to the purpose (National Agreement of 26 November 2020).

The CNIL said in a Q/A on 12 November 2020 that the devices used to monitor employees’ activity must not be aimed at trapping employees and cannot lead to permanent surveillance of employees. Thus, audio or video devices, permanent screen-sharing or keyloggers must not be implemented.

If the employer exercises excessive surveillance on his employee, it may receive a financial penalty.

Finally, the CNIL advises employers to prioritise monitoring the completion of missions by setting objectives rather than monitoring the working time or the daily activity of employees.

Last updated on 21/09/2021

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Italy

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Employee monitoring is governed by article 4 of the Law no. 300/1970.

According to this article if tools that potentially enable employee remote monitoring are needed for the performance of work, employers may be able to collect information from them without a trade union agreement or administrative authorisation. However, information collected through those tools can be lawfully used for all purposes connected with employment, including disciplinary reasons, only if: (i) a company policy is in place adequately detailing the expected use of the tools and the nature of possible checks carried out by the employer; and (ii) the above is done in compliance with data protection legislation. 

No specific guidance or legal provisions have been issued for remote working, so employers should firstly ensure that they are able to monitor their employees in compliance with the above rules. Moreover, the individual agreement signed with the employee working remotely needs to include a reference to how the employer will exercise its monitoring power.

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 21/09/2021

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Switzerland

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According to Swiss legislation, control or surveillance systems that are primarily intended to monitor the behaviour of employees are prohibited if they are detrimental to the health or well-being of employees. Health is understood in its broad sense and also includes mental health. There are no strict limits as to what surveillance is, but measures must always be proportional.

The European Court of Human Rights, whose Convention has been ratified by Switzerland, has laid down seven guiding principles for contracting states concerning legal surveillance of employees. These principles relate to information, the scope of surveillance, legitimacy of the reasons for surveillance, use of the least intrusive means, the consequences of surveillance, guarantees offered to employees and the principle of trust.

As an example, the Swiss Federal Supreme Court, which is the highest judicial authority in Switzerland, has ruled that it is unlawful for employers to install spyware without employees' knowledge to check whether they are using the internet for private purposes. In that case, the court held that the system was capable of exerting control over employees' behaviour, which is prohibited. It also held that the surveillance was disproportionate since the employer simply could have blocked access to certain websites.

The above-mentioned principles must also be complied with when it comes to remote working, which does not differ fundamentally from onsite working.

Last updated on 30/09/2021

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

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France

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French law has no provision for this.

It is, therefore, necessary to refer to the two national agreements of 2005 and 2020. These agreements stipulate that the costs incurred by the employee in the performance of his or her employment contract are borne by the employer. This obligation also applies to teleworkers. However, the national agreement of 2020 sets a few conditions for this coverage: the prior validation of the employer, the expense must be incurred for the needs of the professional activity of the employee and in the interests of the company.

The organisation responsible for collecting social security contributions (URSSAF) has issued a list of expenses that must be covered by the employer. These costs include ink cartridges, paper, telephone and internet subscriptions, electricity, heating, a proportion of rent in certain cases (see below) and home insurance.

The terms and conditions for covering business expenses (maximum amount, the procedure to follow, etc.) may be defined unilaterally by the employer, by mutual agreement between the employee and the employer, or by a collective agreement between the employer and the company's unions. Article 3.1.5 of the national agreement of 2020 and the Ministry of Labour recommend doing everything possible to reach an agreement between the employer and the unions.

If teleworking becomes permanent and the employee no longer has an office on the company's premises, the employer must pay a home occupation allowance.[3]

As for the use of the employee's personal equipment, the principle is that the employer must provide the employee with a computer for teleworking. However, if the employee agrees, they can use their personal equipment (article 7 of the national agreement of 19 July 2005).


[3] Cass. Soc, 14 septembre 2016, n°14-21.893

Last updated on 21/09/2021

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Italy

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Under Smart Working rules employers are not required to provide any tools for employees, nor pay or reimburse any relevant costs for the same.

However, they must ensure health & safety and that any work tools assigned to the employees are functioning well.  It is recommended that employers have an internal policy regulating the use and custody of electronic equipment and how it can be safeguarded from damage and theft. However, in case of Teleworking (see point 1) the employer is required to pay all the expenses related to the installation and the use of remote working station and tools (desk, chair, wireless connection, telephone, etc.).

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 21/09/2021

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Switzerland

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The SCO distinguishes between work equipment or materials and work expenses.

Work equipment and materials, such as phones or laptops, must be provided by employers when they are necessary to carry out the work. However, contracting parties can decide among themselves that employees will provide the work equipment or materials. In such a case, employees are entitled to an appropriate allowance, unless otherwise agreed upon. Work expenses, such as electricity, rent, a telephone or internet plan, generally must be borne by the employer, provided they are necessary to carry out the work. It is not possible to derogate from this rule to the detriment of employees, and employers cannot pass some or all of the costs to employees.

There are several possibilities when it comes to passing costs along to remote workers; employers can provide work equipment and materials or employees can use their own private devices. Instruments and materials that are used for both private and professional purposes are not deemed necessary, since it is considered that employees would have acquired these instruments or materials in any case, even if they are used professionally. This reasoning also applies to private furniture, at least when the exercise of the professional activity does not require the purchase of additional furniture.

Regarding expenses, (eg, rent for private office space or extra rooms), a distinction should be made between three cases: (i) forced remote working for the employee and the employer due to external circumstances (eg, covid-19); (ii) remote working imposed by the employer on the employee (eg, because there are no offices available for the employee); and (iii) remote working agreed upon between the employer and the employee for reasons of personal convenience.

In the first case, which usually occurs when there are extraordinary and unforeseeable circumstances, such as the covid-19 pandemic, the employer must reimburse the employee for expenses incurred to carry out work from home (eg, extra costs for business telephone calls). However, the employer does not have to pay employees’ fixed costs such as rent, internet or a private telephone package.

In the second case, expenses incurred to carry out work from home and which the employee usually does not incur must be borne by the employer. This opinion was followed by the Swiss Federal Supreme Court, which ruled in 2019 that an employer had to pay a portion of an employee's rent because it did not provide the employee with a workspace. This solution also should apply to remote working carried out at the request of the employer.

In the third case (when working from home is the employee's choice), the employer has the right to waive, in writing, compensation for expenses related to remote working, as the remote working costs result from the employee's choice and are not imposed by circumstances or by the employer.

In conclusion, the question of equipment and materials, as well as the question of expenses, depends on the will of the contracting parties and on the situation in which remote working is carried out. Therefore, a case-by-case examination is necessary to determine who bears remote-working expenses.

During the mandatory remote-working period decreed by the Swiss Federal Council from 18 January to 26 June 2021, employees were not entitled to any reimbursement of expenses, since mandatory remote working was a temporary injunction from the authorities. However, as the decree did not contain any provisions covering work equipment and materials, the general provisions of the SCO applied.

Last updated on 30/09/2021

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

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France

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Cross-border remote working can accentuate some of the problems caused by teleworking or create new ones.

Among the existing problems, the loss of social ties is accentuated if the teleworker decides to work from another country. Indeed, the employee abroad will never physically see his colleagues, which will create a distance between the employee working from abroad and other employees.

Similarly, employers must ensure the protection of the health and safety of workers (article L. 4121-1 labour code). This is a difficult obligation to meet in teleworking, especially because employers do not have access to remote employees’ workplaces. It is even more difficult if the employee works from another country because the sanitary, electrical and other standards are different and potentially less protective than French rules.

As for social security law, in principle, the employee depends on the social security system of the country where they work. The employee can only continue to benefit from the French social security system if they are in a secondment situation. Moreover, this is only a temporary solution because the secondment implies a temporary mission. The employer will therefore have to register the employee with the social security system of the country where they are working, which will cause problems in terms of social contributions.

Another question that may arise is whether an employer should accept a work stoppage prescribed by a foreign doctor.

Finally, another problem that may arise is the employee's right to disconnect. Indeed, the employer and the employee must agree on a time slot during which the employee can not be contacted to respect his private life as much as possible.[4] It can be difficult to establish a time slot that suits both the employee and the employer in case of major time zone discrepancies.


[4] National agreement of November 26, 2020

Last updated on 21/09/2021

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Italy

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As a rule, it is not prohibited to work remotely abroad.

However, this could give rise to the following issues:

1) Applicable law: although the employment contract is governed by Italian law (or the law chosen by the parties), the mandatory rules of the place in which the work is carried out could apply, including those on working hours, safety at work, etc.

2) Social security contributions: the general rule is that contributions are paid in the country where the work is carried out. At times, bilateral agreements between countries or within the European Union make exceptions to this general rule if specific requirements are met, providing that in the case of short periods of work abroad, the contributions continue to be paid in the country of origin and not in the country where the work is carried out.

3) Accident at work insurance: Insurance problems could arise in connection with this specific method of working and the employer should verify concretely what kind of coverage exists.

4) Taxation: depending on the period spent working abroad, there is a possible risk of being subject to multiple taxes from different jurisdictions.

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 21/09/2021

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Switzerland

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Remote working has labour, social security and tax law repercussions for employees whose contractual place of work is Switzerland, but are resident in and work remotely from an EU border country. Issues related to remote working from outside the EU are not discussed.

First, regarding labour law, remote working creates a second place where employees carry out their activity. In the event of a dispute, the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters provides that employees may initiate proceedings in the state where their employer has their residence or seat, or in the state where they habitually carry out that work. According to EU case law, an employee's residence can be considered their habitual place of work if they carry out 60% or more of their professional activity there. This criterion only can be excluded if it is shown that based on qualitative criteria, another place is the centre of employees' activities. Swiss case law is less specific than EU case law and only refers to the place where the centre of the activity is located.

Furthermore, remote working also can have repercussions on the law applicable to the contract. European Regulation 593/2008 on the law applicable to contractual obligations (Rome I) indicates that the contract is governed by the law chosen by the parties. However, if a case is brought before a court in the EU, this legislation provides that the choice of the parties cannot override the mandatory employee protection rules applicable in the state where the employee habitually work. Therefore, there is a risk that the law applicable to the contract (eg, Swiss law) could be replaced by the law of the state in which an employee lives.

Second, concerning social security law, employees are usually subject to the social security system of the place where the activity is carried out.  Thus, if employees carry out the entirety of their activity in Switzerland, they are subject to Swiss social security. Conversely, if they perform their entire activity in the EU, they are subject to the social security system of that state. According to European Regulation 883/2004 on the coordination of social security systems, if the activity is carried out in multiple states (eg, partly at the employer's Swiss offices and partly in their state of residence), employees are subject to the social security system of the state in which they reside if they carry out a substantial part (25% or more) of their activity there. Otherwise, employees are subject to the Swiss social security system.

Third, remote working also can have an impact on tax law. In general, taxation in Switzerland is based on residence. However, a person who has neither their residence nor a habitual abode in Switzerland nevertheless may be taxed based on an economic connection with Switzerland, such as the exercise of a gainful activity. Thus, employees who carry out their entire professional activity at home by working from home (outside Switzerland) would have to pay taxes in that state, as a condition for carrying out gainful activity in Switzerland is a physical presence in Switzerland. Employees who carry out part of their work abroad are taxed proportionally in Switzerland and the other states.

The covid-19 pandemic led to some derogations from the above principles. 

In terms of labour law, the widespread remote working connected to the covid-19 crisis is considered to be temporary and thus does not provide a basis for an employee’s state of residence to be considered their usual place of work. Consequently, employees who carry out a substantial part, or even all, of their professional activity by working from home due to covid-19 are not deemed to be habitually working from home within the meaning of the EU regulation, provided that this situation remains temporary.

In terms of social security law, the applicable system is not affected by covid-19-related restrictions. Switzerland has agreed with neighbouring countries that an increase in the time spent by employees of a Swiss company in their state of residence due to the increase in remote working shall have no impact on social security. A flexible application of social security rules has been agreed upon with Germany, Italy, Austria and Liechtenstein and is effective until 30 June 2022. For France, this is effective until at least 31 March 2022. For other states, in principle, this also will apply until 30 June 2022.

In terms of tax law, Switzerland also has agreed with certain neighbouring countries that an increase in the time spent by employees of a Swiss company in the territory of their state of residency due to the increase in remote working shall have no tax impact. The agreement with France was signed on 13 May 2020, and the agreement with Germany was signed on 11 June 2020. These agreements remain in force until at least 31 March 2022. The agreement with Italy, dated from June 2020, is still in force and is tacitly extended on a month-to-month basis provided that neither country terminates it.

Last updated on 20/01/2022

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

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France

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Teleworkers have the same rights as employees who work from a company's premises (article L. 1222-9 III of the Labor Code).

Employers cannot modify employees’ remuneration without obtaining agreement.[5] This rule also applies to teleworkers.

In some countries such as the United States, employers can adjust the remuneration of teleworking employees to the cost of living in the employee's place of residence. This practice is not prohibited in France but the employer must be careful in doing so as it could constitute discrimination based on the place of residence, which is prohibited by the labour code[6]if it is not justified by objective elements. 

However, employers can withdraw a few benefits from teleworking employees. Indeed, even if the Ministry of Labor says in a Q&A that the telecommuting employee must receive lunch vouchers like other employees, some jurisdictions believe that the employer can stop paying these vouchers to teleworkers because they are not in a comparable situation to employees who work from a company's premises.[7]

As for transportation costs, the employer must cover half of the cost of the transportation pass used to travel to the office and to return home from the office (article L. 3261-2 of the labour code). If the employee does not have to travel to work during the month, the employer does not have to pay transportation costs.


[5] Cass. Soc, 18 oct. 2006, n°05-41.644

[6] Article L. 1132-1 Labour code

[7]TJ Nanterre, 10 mars 2021, n° 20/09616

 

Last updated on 21/09/2021

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Italy

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Under Smart Working regulations, employees who work remotely are entitled to receive an overall economic treatment equal to that paid to employees working at the company’s premises. Therefore, generally speaking, employers cannot reduce salaries/benefits of employees working remotely. Nonetheless, recent Italian case law considered it possible for employers to revoke meal tickets from remote workers (except in the case of specific contractual obligations), as it is not part of the normal salary of the employee.

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 21/09/2021

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Switzerland

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The payment of salary constitutes one of the employers' main obligations under an employment contract. This obligation exists even in the case of remote working and, therefore, it is not possible to reduce salary due to remote working.

Regarding benefits, a distinction must be made between different types. For example, it could be considered that employers who provide a car or a transport pass to employees could waive this benefit or reduce it proportionally if employees carry out all, or part, of their professional activity from home. However, if employees are paid meal allowances, it may be more difficult to justify removing this benefit, although the situation is less clear in situations in which employers provides employees with free meals.

Last updated on 30/09/2021

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

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France

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Employers can require that their employees are vaccinated only if the vaccination is made mandatory by the French Public Health Code.

In France, vaccination against covid-19 has not been made mandatory (except for health professionals). Therefore, French employers cannot force their employees to be vaccinated. However, they can recommend it to their employees without forcing them (please note that due to the Law of 5 August 2021, employees are entitled to leave to attend covid-19 vaccination appointments).

Please note that a law was passed by Parliament on 5 August 2021 and states:

  1. To make access to certain places, establishments or events conditional upon the presentation of either a negative PCR test, or proof of vaccination status concerning covid-19, or a certificate of recovery following covid-19 infection.

This would only cover the following activities:

  • recreational activities;
  • bars and restaurants (except company restaurants), including terraces;
  • department stores and shopping centres by decision of the Prefect of the district in the event of risks of contamination under conditions guaranteeing access to essential shops and transport;
  • seminars and trade fairs;
  • public transport (trains, buses, planes) for long journeys; and
  • hospitals, homes for the elderly and retirement homes for companions, visitors and patients receiving care (except in medical emergencies).

In those specific cases, from 30 August 2021, an employer undertaking the above activities may ask their employees to present one of these documents, including proof of vaccination status. If an employee is unable to present such documents and chose, in agreement with their employer, to not use paid holidays, the employer can suspend the employee’s contract, on the same day. This suspension, which can lead to an interruption of salary, ends as soon as the employee produces the required proof.

If the suspension goes beyond three working days, the employer shall invite the employee to a meeting to attempt to rectify the situation, including the possibility of temporarily reassigning the employee to another position within the company not subject to this obligation.

  1. Mandatory vaccination for health professionals, including those working in an occupational health service according to article L.4622-1 of the labour code.

The health professionals listed in article 12 of the law of 5 August 2021 (doctors, nurses, doctors working in occupational health services, osteopaths etc) must be vaccinated as of 9 August 2021, unless there is a medical contraindication or a certificate of recovery can be presented.

Please note that the law provides for a transition period as follows:

  • up to and including 14 September, the staff concerned may present a negative test  that is less than 72 hours old (RT-PCR screening test, antigen test or self-test carried out under the supervision of a health professional) if they are not vaccinated;
  • between 15 September and 15 October inclusive, when an employee has received the first dose of vaccine, he or she may continue to work provided that he or she can present a negative test result; and
  • from 16 October 2021, they must present proof of the complete vaccination schedule.

This obligation does not apply to people who perform occasional tasks. The Ministry of Labour defines “occasional tasks” as a very brief and non-recurring intervention that is not linked to the normal and permanent activity of the company. Workers who carry out these tasks are not integrated into the workgroup and their activity is not public-facing.

This may include, for example, the intervention of a delivery company or an urgent repair.

On the other hand, the following are not occasional tasks: carrying out heavy work in a company (eg, renovation of a building) or cleaning services, because of their recurrent nature.

When carrying out an occasional task, the workers concerned must ensure that they comply with social distancing rules.

Employees who have not presented one of these documents can no longer work. Thus, when an employer finds that an employee can no longer carry out their work, the employee must be informed without delay of the consequences of this prohibition, as well as the means to rectify the situation. A dialogue between the employee and employer to discuss ways of rectifying this situation is encouraged.  An employee who is prohibited from working may, with the employer's agreement, use days of rest or paid leave. Otherwise, their employment contract will be suspended.

The suspension of the contract, which leads to the interruption of salary, ends as soon as the employee fulfils the conditions necessary to continue working.

When the employer or the regional health agency finds that a health professional has not been able to carry out their role for more than 30 days, it informs the national council of the order to which they belong.

Please note that, according to the law of 5 August 2021, the employer must inform the new works council (CSE) of measures taken to implement any obligations to verify the vaccination of health professionals or the health passes of employees who come under the aforementioned sectors.

Last updated on 21/09/2021

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Italy

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As a general rule, employers cannot require employees to disclose their vaccination status. On the other hand, according to the current Italian Covid-related legislation, the company’s occupational doctor could decide to consider the vaccine as a condition for working in the office and/or consider unvaccinated employees as unfit or without the necessary requirements for gaining access to the office (without specifying the reason to the employer). In this hypothesis, the employer should verify whether the employee can work remotely or can be assigned to different duties and, if none of the above options are available, the employer may also suspend the employee without remuneration (once he/she has used up the accrued paid leave and holidays). In this respect, recent Italian case law on this matter (Tribunal of Modena of 19 May 2021 and Tribunal of Rome of 27 July 2021) stated that employees have an obligation to actively cooperate with employers in relation to health and safety in the workplace and that a violation of this obligation may entail consequences for the employment relationship, including the employee possibly being exempted from performing the work activity with no remuneration, confirming in such cases the legitimacy of an employee suspension by the employer.

However, in some hypothesis Italian law requires employees to be vaccinated to carry out their activity or requires to have specific certification to enter company’s premises (see answers below).

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Last updated on 21/09/2021

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Switzerland

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Generally speaking, employers must take measures to protect the health of employees. However, in principle, they are not entitled to require employees to be vaccinated, unless there is an overriding interest based on the principle of proportionality.

The State Secretariat for Economic Affairs (SECO) has stated that an employer can require employees to be vaccinated under specific circumstances, such as when there is an elevated risk of contamination that cannot be mitigated via other protection measures. Further, the employer must weigh the different interests (ie, the employee's private life versus the covid risk) for each individual case. Moreover, the SECO has stated that a company may not impose a general vaccination obligation.

If vaccination can be mandatory and if an employee refuses to be vaccinated, their employer could terminate the employment contract. That decision must be proportionate and must be based on the specific circumstances of the case.

Last updated on 20/01/2022

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

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France

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For employees for whom vaccination is not mandatory, employers cannot make entry to the workplace conditional on vaccination, nor can they threaten to dismiss the employee if they have not had the vaccine.

If an employer makes the return to the company premises conditional on vaccination, they are violating the employees’ privacy and medical confidentiality, and employees may freely refuse it. In case of dismissal, it could be judged null and void since it may violate the employee's privacy and medical secrecy.

On the other hand, for employees working in the above-mentioned establishments (bars, restaurants, department stores, shopping centres etc.), the employer may make the return of the employee to work conditional on the presentation of a health pass (either a negative PCR test, or proof of vaccination status concerning covid-19, or a certificate of recovery following a covid-19 contamination).

Finally, for health professionals, there will be no risk for the employer. The employer will be able to condition the return to the premises on proof of vaccination status.

Last updated on 21/09/2021

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Italy

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As mentioned above, the company’s occupational doctor can lawfully consider the Covid-19 vaccination as a necessary requirement for entering the workplace. Should employers impose this measure without the intervention of its occupational doctor and prohibit unvaccinated employees from entering the company and work, it may give rise to claims against the employer for demotion and damages.

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Last updated on 21/09/2021

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Switzerland

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Except in the abovementioned exceptional cases, employers prohibiting unvaccinated employees from working would be obliged to pay these employees their full salary, even though they did not perform their work.

Employers who have opted to implement measures requiring employees to present a covid certificate should use the Covid Certificate Check application to verify whether employees have a valid covid certificate. The Federal Data Protection and Information Commissioner (FDPIC) has said that employers should avoid keeping a list of employees with a valid covid certificate, or otherwise storing such data, as the employer could be considered to be processing sensitive personal data and thus subject to the rules set forth in the Swiss Data Protection Act (DPA). 

Further, the covid certificate can be presented for verification by the Covid Certificate Check application in either its original version or the "light version". With the original version, it is possible to see whether the employee was vaccinated, recovered from covid or received a test; the "light version" only shows whether the employee has a valid covid certificate. The FDPIC recommends the use of the "light version" in workplaces, as less personal data is visible.

Moreover, this information may not be used for purposes other than determining appropriate workplace protective measures and implementing a testing plan.

Last updated on 20/01/2022

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

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France

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Please see above (questions 8 and 9) regarding the workplaces and specific industries concerned by making the access to the workplace conditional on individuals having received a Covid-19 vaccination.

Last updated on 21/09/2021

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Italy

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Yes. Under the provisions of article 4 of Legislative Decree No. 44/2021, health operators have a legal obligation to be vaccinated against Covid-19 to perform their work.

Moreover, the Italian government passed yesterday (16th September 2021) a new Decree Law - which should be published shortly – providing that from 15th October to 31st December 2021, the so-called Green Pass will be required to access the workplace to all employees of the private and public sector.

The Green Pass is the EU certificate which states that the individual has received two doses of the covid-19 vaccination, has recovered from coronavirus, or has tested negative for covid-19 in the previous 48 hours).

Failure to comply with the obligation to check the Green Passes will entail a penalty from 400 to 1,000 euros.

In case the employees fail to comply with the obligation of having a Green Pass the company has to proceed as follows:

  • if the company has at least 15 employees, it has to immediately suspend the employee without pay, until the employee acquires a Green Pass or in any case until 31 December 2021;
  • for companies with fewer than 15 employees, after five days of failing to present a Green Pass, the employer may suspend the employee for a period not exceeding 10 days.

If the employee accesses the work place without the Green Pass, he/she may also be subject to an administrative sanction ranging from 600 to 1,500 euros.

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Last updated on 06/12/2021

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Switzerland

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No. However, with cases of covid-19 on the rise, the question of whether people working in specific fields, such as the health sector, should be required to be vaccinated is hotly debated.

Last updated on 30/09/2021

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

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France

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Moreover, regarding the processing of data relating to an employee’s vaccination, the CNIL has not yet issued a directive on the specific subject of the processing of employee vaccination data by employers. Because of their sensitive nature, data relating to employee health are subject to special legal protection: they are in principle prohibited from being processed. Employers, therefore, may not keep a list of vaccinated employees, or disclose the names of those who do not wish to be vaccinated.

In fact, according to the CNIL, "because of their sensitive nature, data relating to a person's health are subject to special legal protection: they are in principle prohibited from being processed. In order to be processed, its use must necessarily fall within one of the exceptions provided for by the GDPR, thus guaranteeing a balance between the desire to ensure the security of individuals and respect for their rights and fundamental freedoms. Moreover, their sensitivity justifies that they be processed under very strong conditions of security and confidentiality and only by those who are authorized to do so.

The exceptions that can be used in the context of work are limited and can generally be based on either :

  • the need for the employer to process this data to meet its obligations in terms of labour law, social security and social protection: this is the case for the processing of reports by employees,
  • the need for a health professional to process such data for the purposes of preventive or occupational medicine, (health) assessment of the worker's capacity to work, medical diagnoses etc.

For these reasons, employers who would like to initiate any steps aimed at ascertaining the state of health of their employees must rely on the occupational health services.

The CNIL points out that only competent health personnel (in particular occupational medicine) may collect, implement and access any medical forms or questionnaires from employees/agents containing data relating to their health or information relating in particular to their family situation, their living conditions or their possible movements"

However, we find these exceptions difficult to apply in the context of covid-19.

For employees subject to mandatory vaccination, the law allows the employer, or regional health agency if applicable, to store the result of the check on the proof of vaccination status.

Please note that the employer may not keep the proof of vaccination. In other words, the employer may not keep the QR code, only the “Yes/No” result of the test. Keeping the result is limited in time (currently until 15 November 2021).

The information thus collected is personal data subject to the General Data Protection Regulation (GDPR).

Last updated on 21/09/2021

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Italy

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Only the company occupational doctor is entitled to process any health data concerning employees, as expressly clarified by the Italian Data Protection Authority (DPA). Circular no. 198 of May 13th, 2021 issued by the Italian Data Protection Authority (“Documento di indirizzo”), referring to the implementation of the voluntary vaccination campaign in the workplace, clarified that “employers shall not be allowed to collect, directly from the employees concerned, through the occupational doctor, other health professionals or health facilities, information on all aspects relating to the vaccination, including whether or not the employee intends to adhere to the campaign, whether or not the vaccine has been administered and other data relating to the employee's health condition”. Moreover, the Italian DPA has recently confirmed this principle in Circular no. 273 of July 22, 2021 (i.e. that employers cannot directly process the data regarding the vaccination of employees), also in order to avoid any kind of direct and indirect discrimination based on an employee’s decision to be vaccinated or not.

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 06/12/2021

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Switzerland

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Employers cannot access employee data related to vaccination status, and the processing of such data is not permitted.

Regarding the protection of other data, employers and employees based in Switzerland are subject to the FADP. Under that Act, personal data is any information relating to an identified or identifiable person. Health-related data is considered to be "sensitive personal data" and is subject to specific protections. Medical data, therefore, would be subject to the requirements for processing sensitive personal data.

Several principles guide the processing of data. The principle of lawfulness of processing states that personal data only can be processed lawfully. This means that such action requires a justifiable reason, which could be the consent of the subject, a predominant public or private interest or a legal provision. In the context of employment relationships, the validity of employees' consent as a justification is often called into question, given the unequal relationship inherent in any employment contract (thus preventing the employee from consenting freely).

According to the principle of good faith, it is not permitted to collect personal data without the knowledge and consent of the person concerned. Anyone who deceives that person is in violation of the principle of good faith. The collection of personal data and the purposes of the processing must be recognisable to the subject.

According to the principle of proportionality, only data necessary and suitable for the set purpose may be processed. In addition, according to the principle of purpose, data collected may only be processed for the purposes that were communicated at the time of collection, that arise from the circumstances or that are provided for by law. Finally, the principle of accuracy implies that the processor of personal data must ensure the data is accurate and, if necessary, correct data that is no longer accurate.

In addition, under certain circumstances, EU General Data Protection Regulation also may apply to Swiss companies. However, its general requirements and principles are similar to those of the FADP.

Last updated on 20/01/2022

12. What are the key health and safety considerations for employers in respect of remote workers?

12. What are the key health and safety considerations for employers in respect of remote workers?

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France

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The health and safety considerations for employers in respect of remote workers are the following:

  • Modes of work time control or workload regulation;
  • Determination of the time slots during which the employer can usually contact the remote worker to respect the right to disconnect and the right to privacy;
  • Organise an annual meeting to discuss working conditions and workload; and
  • Evaluate professional risks, in particular those linked to the employee's distance from the colleagues and regulating the use of digital tools.
Last updated on 21/09/2021

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Italy

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Under Smart Working regulations, employees can choose the place in which they perform their work activity. Consequently, employers are not required to verify the safety of any possible place of work but must provide employees with information. In particular, employers have to provide employees and the workers’ safety representative, at least on an annual basis, with a document which indicates the general risks and the connected specific risks linked to Smart Working.

Furthermore, it is highly recommended for employers to organise courses focused on the peculiarities of smart working (especially from an H&S perspective). In any case, employees are required to cooperate in the implementation of safety measures in order to address the risks associated with the performance of work outside the premises of the company.

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 21/09/2021

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Switzerland

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In general, employers must take necessary measures to protect the life, health and safety and personal integrity of employees. They must avoid demanding excessive effort from employees and may not burden them with work that could damage their health. Therefore, they have to organise workflow in such a way as to not overwork employees. They also have communication and training obligations, in particular, informing employees and instructing them on risk-prevention measures. Employers generally must ensure that employees' workplaces are properly designed, taking into account equipment, buildings and the working environment.

These measures also apply to remote working and employers are not relieved of their obligation to protect employees' health and safety when work is performed offsite. In the case of remote working at the employer's request, employers have to ensure that employees are provided with the necessary equipment to comply with these conditions or if necessary offer financial compensation for employees to make the necessary arrangements themselves. In any case, employers should ensure that employees are made aware of the health risks involved with remote working, in particular concerning the workplace layout working hours and rest periods.

Last updated on 30/09/2021

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

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France

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The pandemic does not strictly speaking have an impact on employers' obligations towards workers' health and safety beyond the physical workplace. But the National Interprofessional Agreement on remote status was renegotiated on 26 November 2020 and strongly raised awareness among employers on those issues to:

  • Communicate within the work community;
  • Adapt the managerial practices: trust and definition of clear objectives;
  • Train managers and employees;
  • Maintain social ties and prevent employees from isolation: it is useful to plan group time, to set up remote communication means to facilitate exchanges, to assist in case of difficulties with computer tools, etc; and
  • Make available to all employees, including those working from home, relevant contacts so that employees in vulnerable situations can use them.
Last updated on 21/09/2021

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Italy

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As mentioned, employers must implement all the necessary measures in order to protect employee health. This obligation needs to be balanced with the limits set by privacy regulations. During the pandemic, striking this balance has become crucial and harder to apply. In this context the role of the company occupational doctor is fundamental, as he or she is the only person allowed to process employee health data. In particular, the occupational doctor is also in charge of recommending to employers the measures that should be implemented with reference to each employee.

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 21/09/2021

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Switzerland

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When remote working first was decreed on 18 January 2021, employers had to act quickly to implement the remote-working obligation, while also protecting the health and safety of employees.

Thus, employers had to think differently about how to raise awareness among employees, especially concerning working hours and rest periods. Employers also had to ensure that employees were provided with adequate equipment and materials, such as a suitable office chair that was safe for their backs or a workroom that met the safety and hygiene standards set by the FOPH. In addition, the authorities also issued guidelines for employees.

Last updated on 20/01/2022

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

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France

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No, the legal and conventional provisions on health and safety at work apply to both mobile workers and workers based primarily at home. It must be taken into account that the employer cannot have complete control over the place where teleworking is carried out and the environment, which is part of the private sphere. This implies an occupational risk assessment adapted to the case of mobile workers and the case of workers based primarily at home.

Last updated on 21/09/2021

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Italy

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The two different ways of working outside the company premises: Teleworking (“Telelavoro”) and Smart Working (“Lavoro Agile”) impose different obligations on employers.

As said, employees working remotely under a Smart Working arrangement (not having a predetermined fixed place) must be clearly informed of the specific risks of performing his/her work activity in this way.

Conversely, in the case of Teleworking, employers - in addition to guaranteeing that the work activity is carried out in full compliance with health and safety rules and providing employees with specific information on safety matters – are also allowed to access/inspect the places in which teleworking is carried out by employees in order to verify the correct application of health and safety rules and polices. Consequently, this triggers a great responsibility for employers, also with regard to the overall safety of the employee’s home (e.g. including the electrical system). Moreover, employers must ensure the adoption of measures preventing the isolation of the teleworker from other company employees, such as opportunities to meet regularly with colleagues and to access company information.

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 21/09/2021

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Switzerland

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In contrast to other legal systems, Swiss legislation does not recognise the concept of "mobile workers". Therefore, mobile workers are considered to be employees without a fixed place of work (ie, those who work in several different locations or who travel in the course of their work). "Workers based primarily at home" are employees who do not necessarily have a workplace provided by their employers, but who are mainly in one place, (ie, their home).

Swiss law does not contain different regulations for these two categories of workers.

However, in practice, employers' recommendations will differ based on the worker's situation.  It can be assumed that when employees do not have a fixed place of work, employers will have to take this into account more in their recommendations, since the employee has fewer possibilities for an "appropriate" workstation. Also, employers will have to be more attentive to the working hours of a "mobile worker". 

Last updated on 30/09/2021

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

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France

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Employers are liable within the limits of their obligations (see question 12). As long as employers respect these obligations, in case of litigation, it will be up to the employee to demonstrate that the deterioration of their health is related to the employer's failure to respect its obligations.

Last updated on 21/09/2021

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Italy

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Mental health and wellbeing are also included within the general obligation for employers to safeguard employee health. This is also the case for employees working remotely.

With reference to Smart Working, Italian provisions specify that the technical and organisational measures in place for guaranteeing employee disconnection from IT tools must be provided for within the individual agreement.

While, in case of Teleworking, employers must address measures to prevent isolation of the teleworker from other employees, such as by providing opportunities to meet regularly with colleagues and to access company information.

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 21/09/2021

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Switzerland

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Employers are responsible for the health and well-being of employees, including their mental health. However, Swiss law does not provide a general definition of the protection of mental health. In any case, employers cannot be indifferent to the mental health of their employees. They have a duty to help, to reduce tensions, resolve relational conflicts, prevent harassment and protect employees from rumours and bullying. Wherever possible, employers must accommodate employees whose mental health is at risk so that they can continue to work, (eg, by moving the employees' workplace).

These obligations also apply to remote working.

Last updated on 30/09/2021

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

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France

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During the pandemic, employers were able to carry out reorganisations involving collective redundancies for economic reasons (subject to justifying a real and serious economic reason as defined by article L.1233-3 of the labour code).

They were also able to negotiate collective performance agreements to meet the needs linked to the operation of the company or to preserve or develop employment by adjusting the working hours of employees, remuneration, and determining the conditions of professional or geographical mobility within the company.

Employers may also have to negotiate or renegotiate agreements or charters on remote status or review their organisation by developing a co-working space, different from the company’s premises, on a regular or occasional basis or in case of exceptional circumstances or force majeure.

Last updated on 21/09/2021

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Italy

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During the pandemic and up to 30th June 2021 (and in some circumstances, until 31st December 2021) a dismissal ban was in force under which neither collective nor individual redundancies were possible.

On the other hand, in some cases, employers were able to reach agreements with their employees – mostly executives – for a reduction, or a deferral of the payment of the bonus due.

The main organizational changes that have been largely implemented are linked to (i) the implementation of a new working model base on the remote working and (ii) the massive use of the new social shock absorbers that has been granted by the Italian Government to the employers. Specifically, employers, through the so-called social shock absorbers, could suspend the activity of their employees without paying them and the employees received an indemnity from INPS (the Italian Social Security Body).

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Last updated on 21/09/2021

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Switzerland

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Regarding wages, authorities have extended the use of pre-existing "reduced working hour allowances". This measure is intended to avoid dismissals following a brief but unavoidable absence from work. According to the system now in place, under certain conditions, employers have the right to (fully or partially) reduce the working hours of their employees and apply for allowances for reduced working-hour allowances. Those allowances cover up to 80% of wages related to the reduced hours. The hours effectively worked still are fully remunerated by the employer.

The Swiss Federal Council has decided to keep in place a procedure for a simplified calculation of the allowances for reduced working-hour allowances until 31 December 2022.

In addition, employees infected by covid-19 and unable to work due to illness are entitled to the payment of their salary under the same conditions as for any other illness-related incapacity. In particular, the salary would not be paid if an employee voluntarily travels to an area at risk or disregarded basic rules of caution and hygiene. If employees are stranded abroad because the authorities ordered a quarantine or return flights were cancelled, employers may refuse to pay their salary.

Last updated on 20/01/2022

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

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France

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In general, employees and new works council members have a right to alert and withdraw from any situation which they have reasonable grounds to believe presents a serious and imminent danger to their life or health (article L.4131-1 and L.4121-2 of the labour code).

Apart from these actions, the new works council or the unions will always have the ability to report to the employer any malfunction affecting the entitlements and rights of remote workers.

In any case, please note that employees who wish to terminate their status as a remote worker will have priority to assume resume a non-teleworking position that corresponds to their professional qualifications and skills and to inform the employer of the availability of any such position (article L.1222-10 of the labour code).

Last updated on 21/09/2021

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Italy

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During the Covid-19 pandemic Unions were ready to make their voices heard in order to guarantee the protection of employees, especially regarding their health and safety.

With reference to smart working, the main tool for unions is the NCBA, which, in fact, is the results of negotiations between Social Parties and can include further protection for employees or an obligation to also inform and consult unions in order to introduce smart working.

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Last updated on 21/09/2021

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Switzerland

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Under pressure from unions, the Council restored protection for vulnerable individuals. These vulnerable employees now have the right to work from home. If employees are not able to carry out their work from home, employers may give them other tasks that can be carried out at home. If no tasks can be performed at home, these employees are released from their obligation to work and the employer must pay them their full salary. This protection is still in place at the time that this article was written.

In addition, the main employers' organisations in French-speaking Switzerland set up a remote-working agreement template in October 2020. This template was considered "insufficient" by the trade unions, because they were not consulted during its development. However, it is often used.

In February 2021, the Federal Personnel Association launched a petition demanding the right to work from home for people employed by the Swiss Federal Administration.

Last updated on 20/01/2022

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

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France

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Remote-working is implemented within a collective agreement negotiated with the unions or, failing that, within a charter drawn up by the employer after the opinion of the new works council if it exists (article L.1222-9 of the labour code).

The collective agreement or, failing that, the charter drawn up by the employer specifies:

  • The conditions for switching to remote status, in particular in case of a pollution episode, and the conditions for returning to performance of the employment contract without remote working;
  • The terms of acceptance by the employee of the conditions of implementation of remote status;
  • The modes of control of the working time or regulation of the workload;
  • The determination of the time slots during which the employer can usually contact the remote worker; and
  • The modes of access to a telework organisation for disabled workers.

The way of negotiation seems to be prioritised by the legislature. Apart from those mandatory clauses, the social partners have every interest in being a force of proposals, which will be accepted or refused by the employer. If the unions refuse to sign the agreement, the employer may provide for these measures in the framework of a charter, which it may implement after the opinion of the new works council (non-binding opinion).

Finally, in the absence of a collective agreement or charter, when the employee and the employer agree to telework, they may formalise their agreement by any means.

Last updated on 21/09/2021

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Italy

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Generally, No. In some cases, National Collective Bargaining Agreements (NCBAs) may provide a specific obligation to inform and consult unions.

Furthermore, in the context of Covid-19 emergency, companies have set up internal committees, formed by a) a representative of the employer b) representatives of the employees (i.e. Works council and Representative of the workers for health and safety “RLS”) and c) the company’s occupational doctor, to periodically monitor the effectiveness of the safety measures implemented by the company and, if necessary, amend or confirm them.

©Toffoletto De Luca Tamajo, ©Ius Laboris

Last updated on 21/09/2021

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Switzerland

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In general, there is no obligation to consult with unions if employers want to introduce remote working in the company.

If employers are planning to introduce forced remote working on a long-term basis, the implementation of this change would require a termination-modification (ie, a termination of the contract coupled with a new job offer).

Last updated on 30/09/2021