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.

Choose countries

 

Choose questions

Choose the questions you would like answering, or choose all for the full picture.

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?

Flag / Icon

France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

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

Flag / Icon

Germany

  • at CMS Hasche Sigle

There has been no change to the legal basis for mobile working in Germany as far as the employer-employee relationship is concerned. However, at the end of 2020, the Federal Ministry of Labour and Social Affairs (BMAS) proposed the draft Mobile Work Act. The intention was to give employees a right to request mobile working and discuss the issue so they can reach an agreement with their employer. For any employer that disregards its obligation to discuss an employee's request and fails to issue a refusal in due form and time, the draft law states that the employee's request for mobile work would become part of their contract for six months. However, the draft contains several ambiguities. After employers' associations and individual interest groups (eg, the German Lawyers' Association) expressed reservations, the draft law was not passed. It was not introduced into the legislative process and the German parliamentary elections in September 2021 have rendered it moot.

However, from 24 November 2021 to 19 March 2022, a temporary amendment to the Infection Protection Act imposed an obligation on employers to offer remote working unless any overriding operational reasons exist to the contrary. Employees had to accept the offer provided there are no reasons to the contrary on their part. These may be, for example, a lack of space or technical conditions in the employee's home. Since 20 March 2022, there is no longer any legal obligation for remote working. Nevertheless, employers can continue to offer home office voluntarily.

An amendment to the Works Constitution Act brought another change in June 2021, confirming the works council's comprehensive right of co-determination in the organisation of remote working. This very significant development means that a works council can stop measures through which mobile work will be introduced or changed through an interim injunction if it has not given its consent beforehand, or if the refusal has been replaced by an internal arbitration procedure within the company. Against this background, companies need to involve employee representatives in good time if new regulations for mobile work are to be introduced as part of the "new normal".

In principle, the provisions of German labour law only apply to employees. Employees are characterised by the fact that they are deployed within an operational organisation, performing work that is subject to instructions. However, there are two important points to note: platform workers may also be covered, as the German Federal Labour Court ruled in its judgment of 1 December 2020 (9 AZR 102/20); and wherever national law serves to implement EU law, an extension is necessary. Accordingly, managing directors and employees who are in an economically dependent working relationship with a principal (ie, they have a similar status to employees) can also be covered. This might also be relevant to mobile work if provisions to transpose Directive (EU) 2019/1158 on work-life balance for parents and carers into national law and repeal Council Directive 2010/18/EU are planned.

Last updated on 14/04/2022

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.

Flag / Icon

France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

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

Flag / Icon

Germany

  • at CMS Hasche Sigle

As in other countries in Europe, the provisions of the EU General Data Protection Regulation (GDPR) and its German implementation in the shape of the German Federal Data Protection Act (BDSG) must be observed. Against this background, special measures must be taken to protect personal data in connection with remote work. This especially concerns third-party access to systems when computers and other portable devices are used in the home or on the go. To this end, employers often issue guidelines of standards with which employees must comply.

Also, remote working poses many data protection risks in terms of IT security and confidentiality. For example, cybercrime exploits the vulnerabilities inherent to remote working to infiltrate IT systems and steal confidential data, for instance through phishing attacks. At the same time, the confidentiality of a phone call, for example, is harder to protect while working in a co-working space, on a train or at home than in a typical workspace. Therefore, remote working may require different security measures and employers should inform their employees accordingly. In this regard, the European Union Agency for Cybersecurity last year published cybersecurity tips for remote working, both for employees (connecting to the internet via secure wi-fi networks, fully updating antivirus software and using a secure connection) and for employers (providing initial and regular feedback to employees on how to react if problems arise and restricting access to sensitive systems, etc.).

Last updated on 21/09/2021

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?

Flag / Icon

France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

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

Flag / Icon

Germany

  • at CMS Hasche Sigle

Employers may have various legitimate reasons to scrutinise and monitor employees' performance or conduct during remote work (eg, productivity, to enforce company policies, protect business secrets, health and safety obligations). However, monitoring worker activity is only permitted in any given case if the employee's privacy interest does not outweigh the employer's legitimate interests. Therefore, employers must justify employee monitoring on a case-by-case basis.

As a result, while monitoring employees via webcam is generally not allowed, monitoring employees' browser history or emails might be possible if the employer prohibits private use of the laptop; there is cause for the monitoring; and the measure does not lead to permanent monitoring of the employee's digital behaviour. Irrespective of this, if a works council has been established, the employer also needs the consent of the employee representatives to use a technical device that monitors employees' performance or behaviour. This is the case with any software.

In any event, the use of a keylogger that continuously records an employee's activities is unlawful. The data cannot be used in a procedural dispute, as the German Federal Labour Court ruled in its judgment of 27 July 2017 (2 AZR 681/16). Employers must always bear in mind the need to comply with the principles of the GDPR and the BDSG, as the personal data that employers collect when monitoring remote work is sensitive data. Employers must therefore take all necessary measures to ensure data confidentiality and secure access to company servers. Monitoring of private emails or private browser history is only permitted if there are clear signs that the employee has committed a criminal offence, but even then, the investigation must be proportionate.

Last updated on 21/09/2021

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)?

Flag / Icon

France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

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

Flag / Icon

Germany

  • at CMS Hasche Sigle

Employers are usually required to provide the necessary work equipment when remote working is agreed upon. The obligation to provide work equipment includes office furniture (such as office chairs and desks), IT equipment (hardware and software), office materials (such as stationery and toner) and the necessary telecommunications (like a telephone or internet connection). However, employers are exempt from this obligation if an employee voluntarily chooses to work on a mobile basis despite the business providing company premises.

If the employer and the employee agree that the employee will work at home, the employer usually pays for electricity, heating and internet. However, one-off agreements are usually made in these instances. In addition, the worker is generally provided with a laptop and additional equipment to ensure data security. Office equipment is usually only provided if the employee works exclusively from home (ie, no workstation is provided on company premises). Employers do this not only to save costs, but also to avoid having to check – which is controversial – whether the work station where the employee is working remotely complies with the general principles of health and safety.

Last updated on 21/09/2021

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?

Flag / Icon

France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

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

Flag / Icon

Germany

  • at CMS Hasche Sigle

There can be potential issues and risks concerning the taxation of salaries, social security coverage (eg, Regulation (EC) No 883/2004) and the applicable labour law for employers in the context of cross-border remote-working agreements (eg, article 8 Rome I Regulation).

For employees who live in a different country than where the employer is based, special regulations in double-tax treaties for cross-border commuters might normally apply.

However, due to the pandemic many cross-border commuters stay at home and work remotely. As such, they no longer meet the conditions to be considered cross-border commuters and the double-tax treaties cease to apply. To avoid a change in the previous tax treatment because of temporary remote working, bilateral agreements have been reached, for example with Austria, Switzerland, France, Belgium, and Luxembourg. Pandemic-related home working days are deemed to be performed in the country of employment. The agreements are extended until June 30, 2022.

Last updated on 14/04/2022

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?

Flag / Icon

France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

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

Flag / Icon

Germany

  • at CMS Hasche Sigle

The employer is required to pay remuneration based on an employment contract or collective bargaining agreement. Normally, there are no clauses in that contract that provide for a reduction in salary if the employee works remotely. However, special allowances for the reimbursement of expenses that become obsolete due to working from home (such as meal allowances or reimbursement of travel expenses) may no longer apply in individual cases.

Last updated on 21/09/2021

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?

Flag / Icon

France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

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

Flag / Icon

Germany

  • at CMS Hasche Sigle

Employees in health care and nursing facilities will be legally required to be vaccinated against COVID-19 as of March 16.  Accordingly, employees must submit proof of vaccination or recovery by March 15, or they must have proof that they are medically exempt from the requirement to be vaccinated against coronavirus. Employers are supposed to check the vaccination or recovered status of their employees and submit the proof to the health department upon request. Failure to do so will be treated as a misdemeanour.  As of March 15, the health department can then issue a prohibition against affected persons entering the company or facility. If, as a result, the employee is unable to perform his or her contractually agreed activity, he or she has no claim for compensation against the employer. If an employee persistently refuses to provide proof of 2G or a medical certificate of contraindication, the entitlement to continued payment of remuneration ends. Some courts even accept that the employer terminates the continued payment of wages even before a decision by the health authorities. Whether the lack of immunisation also entitles the employer to terminate the contract is disputed, because the obligation to immunise in health care and nursing facilities is due to end on 31.12.2022.

In other sectors will be no legal obligation to be vaccinated against covid-19. Nevertheless, there is an ongoing discussion to change that situation.

Thus, an obligation to be vaccinated cannot be agreed in an employment contract; it would deviate from the basic principles of the statutory rules and therefore be invalid according to the law on general terms and conditions.

Nor can an obligation to be vaccinated be introduced through a works agreement and stipulated by the employer and works council. According to the established case law of the German Federal Labour Court, the parties to a works agreement are bound by the fundamental rights of the German constitution. In this regard, the physical integrity of the employees who are not willing to be vaccinated, which is protected under the German constitution, outweighs the employer's interest in making vaccination compulsory in the workplace.

However, it is not just permissible for employers to promote vaccinations of employees. New legislation leads to the obligation on employers to enable employees to be vaccinated against covid-19 during working hours. Employers shall provide organisational and staffing support to company doctors and the inter-company services of company doctors who carry out protective vaccinations in the company for reasons of population protection. Within the framework of instruction, employees shall be informed by the employer of the health hazards involved in contracting covid-19 and shall be informed about the possibility of protective vaccination. In addition, it is permissible – if controversial – to provide incentives for vaccinations in the form of a bonus. In any event, it is important to avoid discriminating against employees who cannot or do not wish to be vaccinated because of pregnancy, disability or for religious reasons.

Last updated on 14/04/2022

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?

Flag / Icon

France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

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

Flag / Icon

Germany

  • at CMS Hasche Sigle

Under current law, employers may not – apart from the health care and nursing sector – make employment conditional on employees being vaccinated. If an employer refuses an employee access to the workplace, the employee is not only entitled to continued payment of salary but can also enforce his or her right to employment (ie, through an interim injunction to compel the employer to grant access to the workplace and to provide employment). In addition, there is a risk for the employer that the demand for vaccination will be assessed as discrimination, at least in the case of employees who cannot or do not want to be vaccinated because of pregnancy, disability or for religious reasons.

Based on the new temporary amendments to the Infection Protection Act, a “3G” rule applies in the workplace: employees will only be allowed to get access to their workplace inside company’s premises if they have been vaccinated, have recovered from covid-19 or have been tested (with a negative result) not more than 24 hours before the time entering their workplace. Employers must check whether employees comply with this obligation and keep a record. Employees of nursing and care facilities must regularly submit a negative test even if they have been vaccinated or have recovered.

Last updated on 14/04/2022

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?

Flag / Icon

France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

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

Flag / Icon

Germany

  • at CMS Hasche Sigle

Yes, in the healthcare and nursing sector.

Last updated on 14/04/2022

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?

Flag / Icon

France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

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

Flag / Icon

Germany

  • at CMS Hasche Sigle

Data that an employer collects to draw inferences about an employee's health is special category personal data. Such data is granted special protection under the General Data Protection Regulation and the German Federal Data Protection Act. The collection and processing of employee health data for the employment relationship is only permitted if the employee consents, or if it is necessary for the exercise of rights or to meet legal obligations under employment law and if there is no reason to assume that the interests of the employee involved in the protection of his or her data prevails. In case of doubt, a distinction will have to be made according to the type of information and the environment in which the employee is employed. Employers are entitled under the temporary amendments to the Infection Protection Act to store and process the personal data on vaccination or immunisation status for up to six months. The data may also be used to adapt the company hygiene policy based on risk assessment, as far as is necessary. Regardless, employers must comply with the requirements of data protection, in particular by taking appropriate and specific measures to protect the health data of the persons concerned in accordance with the GDPR and the German Federal Data Protection Act.

Furthermore, it is permissible to ask whether an employee has symptoms of covid-19. It is equally admissible – albeit contentious – to ask whether a worker is currently ill with covid-19. This is because, without knowledge of the specific danger of an illness, the employer cannot take any special protective measures and might endanger other employees and third parties by employing that employee.

Last updated on 30/11/2021

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?

Flag / Icon

France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

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

Flag / Icon

Germany

  • at CMS Hasche Sigle

Employers' main considerations regarding the health and safety of remote workers should focus on a risk assessment of their remote workplace and the safety training of remote workers. It should be emphasised in this context that employers are only required to do what is actually within their power and control. In the case of remote working, employers are therefore particularly dependent on their employees' cooperation to ensure occupational safety.

Based on these considerations, remote workplaces must be subject to a risk assessment. Employers may try to personally inspect the workplace at the private home of an employee. However, this is unusual and, because of the constitutional protection of the integrity of the home, is subject to the employee's consent. Furthermore, especially in the case of mobile work, it must be taken into account that the place of work is not fixed and is determined by the employee. Thus, the employer usually requests the information required for the risk assessment by obtaining sufficiently specific information from the employee. The physical stresses resulting from the location of the workplace, the equipment of the work materials, the amount of light at the workplace, the height of a work desk; and the working environment must be taken into account. This applies to private workplaces as well as to workplaces in co-working spaces or other work environments (eg, hotel, train). Also, the psychological stress resulting from the duration of working hours, the lack of (personal) contact with colleagues and customers or the increasing mixing of private and professional life must be recorded. Based on the risk assessment of the remote workplace, the employer must prepare instructions on necessary measures to protect health and safety and ensure those instructions are implemented. These instructions should enable the employee to recognise and avoid hazards in their remote workplace.

Last updated on 21/09/2021

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?

Flag / Icon

France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

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

Flag / Icon

Germany

  • at CMS Hasche Sigle

The pandemic has great implications for employers' health and safety obligations towards their employees, especially concerning mental health challenges due to the change in working conditions during the pandemic. This includes the isolation of workers, the lack of social contact, stress caused by the erosion of work boundaries and the resulting mixing of private and professional duties. This affects women in particular, who in many cases have taken on special duties at work and home and are thus under greater strain. Assuming that mobile work will continue to be of increasing importance after the end of the pandemic, it is important to keep an eye on these stresses and to define sustainable countermeasures.

Last updated on 21/09/2021

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?

Flag / Icon

France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

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

Flag / Icon

Germany

  • at CMS Hasche Sigle

In principle, employers are required to carry out an analysis of the physical and mental hazards for mobile workers as well as for workers who are deployed in a home office. Of course, the specifics of the covid-19 pandemic must be taken into account. However, if an employer sets up a permanent work station in the employee's home or a co-working space, German law specifies these duties in the Workplace Ordinance. This includes not only a risk assessment and subsequent instruction for the employee so that the health hazards of working from home are avoided. The employer is also required to ensure compliance with the EU regulations of the Display Screen Equipment Ordinance. This contains technical specifications on the equipment of the workplace as well as regulations on how the work itself must be organised (eg, breaks with mixed activities).

Last updated on 21/09/2021

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?

Flag / Icon

France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

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

Flag / Icon

Germany

  • at CMS Hasche Sigle

In general, employers are required to take the necessary occupational safety measures, taking into account the circumstances that affect the health and safety of employees at work, even if employees are working remotely. Thus, the employer must organise the work in such a way that any hazards to mental or physical health are avoided as far as possible and any residual hazard is kept to a minimum. Necessary measures to protect employees must be planned, taking into consideration communication technology, the organization of work, other working conditions, social relationships and the influence of the environment on the workplace. Nevertheless, since mobile workers choose their workplace, employers are not directly responsible for the design of that workplace. This certainly applies where workers voluntarily choose to work on a mobile basis. However, employers must point out the possible dangers and ask the worker to take appropriate, necessary and reasonable measures to protect his or her health. The employer is also required to regularly check that those instructions have been understood and implemented.

Last updated on 21/09/2021

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?

Flag / Icon

France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

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

Flag / Icon

Germany

  • at CMS Hasche Sigle

Termination for operational reasons requires the absence of a permanent need for employment. If this is only temporary, in general, this does not justify terminating the employee's employment. This also applies to temporary closures ordered by the authorities. Termination for operational reasons should be a last resort, even in times of a pandemic. The employer must introduce short-time work or a reduction in vacation days before giving notice.

Short-time work can temporarily shorten working hours and reduce the employee's entitlement to remuneration. The aim of ordering short-time work is to prevent redundancies and to preserve jobs. The employer has a unilateral right to order short-time work if it is permitted to do so by a collective-bargaining agreement, works council agreement or employment contract. Due to the covid-19 pandemic, various special regulations apply in the area of short-time work. That includes the payment of social security contributions. Special regulations in force for short-time allowance allow the employer to be reimbursed for 100% of their social security contributions up to 30 September 2021.

The employer cannot unilaterally reduce salaries just because workers cannot be employed during the crisis outside of short-time work. The employer bears the risk of employing workers even in a crisis and is required, if necessary, to pay the full salary even without employment.

Last updated on 21/09/2021

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?

Flag / Icon

France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

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

Flag / Icon

Germany

  • at CMS Hasche Sigle

In the covid-19 pandemic, trade unions and employee associations demanded that employees be granted the right to work from home. Moreover, they required that compliance with regulations concerning remote working and occupational health and safety regulations should be monitored.

Last updated on 21/09/2021

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)?

Flag / Icon

France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

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

Flag / Icon

Germany

  • at CMS Hasche Sigle

In Germany, employers are not required to consult or involve trade unions or other employee associations when a remote-working arrangement is introduced. Employers can, however, voluntarily enter into negotiations with the union to make arrangements for mobile work at the collective bargaining level.

More important is the involvement of the works council. The works council does not have a say in whether the employer allows mobile work. However, if the company has decided to allow remote working, the works council must be fully involved in any further arrangements. This includes, for example, the distribution of mobile work and office work, work equipment, the design of tasks, data privacy issues, working time and accessibility, and any plans for monitoring workers during mobile work. This is especially true after the Works Council Modernisation Act came into force in 2021, as Victoria Kaule and I have described elsewhere.

Last updated on 21/09/2021