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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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

  • 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

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Mexico

  • at Marván, González Graf y González Larrazolo
  • at Marván, González Graf y González Larrazolo
  • at Marván, González Graf y González Larrazolo

Security controls

The common risks associated with remote working derive from the absence of security controls over equipment, software, and data, and not having any policies for remote-working schemes, leading to:

  • employees storing sensitive information in their local machines, without the control of employers over such tools;
  • compromised security controls; and
  • Wi-Fi networks and routers in homes are more easily compromised, increasing the risk of exposure.

Companies have the right to install security controls for the equipment and tools to be used by teleworkers to avoid any leaks of information and limit their use, because this hardware is the property of the employer. The common practice in Mexico is to implement a security data policy and a work tools policy.

Additionally, even though there are no specific legal provisions concerning the plausible risks associated with data protection in remote-working schemes, the Federal Law for the Protection of Personal Data in Possession of Private Individuals or Entities, the Federal Law for the Protection of Industrial Property, and their regulations and guidelines, establish provisions for the protection of rights concerning personal data, confidential information, and trade secrets, which also apply to remote-working schemes; therefore, all employees working remotely must comply with these laws and regulations. To prevent and avoid the disclosure of this information, the prevailing practice is to enter into agreements with employees establishing specific obligations in connection to confidentiality and data privacy. Such obligations usually refer to the policies and processes established by employers to ensure information security, and the corresponding penalties in the event of any breach.

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?

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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

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Mexico

  • at Marván, González Graf y González Larrazolo
  • at Marván, González Graf y González Larrazolo
  • at Marván, González Graf y González Larrazolo

Employers are not authorised to mandate or demand employees to receive a covid-19 vaccination. If an employee refuses the covid-19 vaccine, their employer may not terminate their employment contract or impose any other sanction. However, employers may implement preventive measures according to the provisions for the reopening of workplaces, which employees must comply with. If an employee does not comply with such preventive measures or policies, their employer can terminate the employment contract with justifiable cause. It is important to mention that the employer must have abundant evidence of a policy breach by the employee for the termination to be justifiable if a lawsuit were to be filed by a dismissed employee.

Last updated on 21/09/2021

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

  • 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

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Mexico

  • at Marván, González Graf y González Larrazolo
  • at Marván, González Graf y González Larrazolo
  • at Marván, González Graf y González Larrazolo

No, the government has released a covid-19 FAQ where they clarify that vaccination is not mandatory.

Last updated on 21/09/2021