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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Sweden

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The Swedish government has not introduced any statutory laws regarding remote working, only recommendations. Thus, it is generally the employer who decides if employees should work from home or at the office. Under the currently applicable recommendations from 23 December 2021, the Swedish Public Health Agency recommends that employers facilitate employees working from home.

Last updated on 24/01/2022

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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Sweden

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Pursuant to the GDPR, personal data should, inter alia, be processed in a manner that ensures appropriate security and confidentiality for the processing of that data, including by preventing unauthorised access to or use of personal data. For natural reasons, there may be additional challenges associated with this obligation when employees are working remotely, including an increased risk of personal data breaches when employees are working from home. The Swedish Authority for Privacy Protection mentions in its Privacy Protection Report of 2020 the increase in employees working from home as a result of the covid-19 pandemic, and the increased use of cloud service providers. The Authority highlights that data in cloud services is often transferred to countries outside the EU/EEA, and especially to the US. As a result of the Schrems II ruling in 2020, the use of, eg, cloud service providers that transfer data to  such jurisdictions (eg, in connection with IT maintenance) is problematic and may need to be addressed in relation to remote working.   

In light of the above, it is important as an employer to consider what measures are necessary in terms of IT security when working from home (eg, instructions to employees).

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?

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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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Sweden

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From a privacy perspective, employers must consider the GDPR and other privacy-related legislation. The GDPR states, inter alia, that the processing of personal data must be adequate, relevant and limited to what is necessary concerning the purposes for which they are processed (ie, the data minimisation principle). This means that the employer’s monitoring of employees cannot be too intrusive – it must be proportionate for the purpose. Furthermore, employers must be able to demonstrate that the purpose of the processing cannot be fulfilled by other, less-intrusive, means. Employers must also adhere to other GDPR requirements, eg, providing employees with information about the data processing in advance. Further, employers must always act in accordance with good practices in the Swedish labour market.

When it comes to employees’ use of email and the internet, the Swedish Authority for Privacy Protection recommends that employers have guidelines for internet use and e-mail. The guidelines should clearly state what type of private use is permitted, and also when the employer may consider controlling employees’ internet or e-mail use. Depending on the situation, it may be lawful to carry out inspections of an employee’s online usage. If there is a concrete suspicion that an employee is acting in breach of his or her employment contract, it may be lawful to monitor that employee, subject to complying with the GDPR and other privacy legislation. Employees must be informed about inspections or monitoring that may take place.

In terms of time tracking, the Swedish Working Hours Act also applies to remote working, meaning that the same limits on overtime and provisions on minimum daily rest periods must be observed. In some circumstances, however, such as when the work is performed without employer supervision or control, the Working Hours Act may not apply. There are no general guidelines on when the exemption is applicable, but it should be applied restrictively and is rarely applicable in the case of remote working. Employers should therefore engage in dialogue with employees on their working time to ensure compliance with the Working Hours Act.

Last updated on 24/01/2022

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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Sweden

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There is no legal obligation per se to provide work equipment; however, employers are responsible for the overall work environment, irrespective of whether the work is performed at the office or remotely from the employee’s home. This means that the employer must assess the employee’s homeworking environment to identify any health and safety risks. This also includes a responsibility for the psychosocial environment. If such an assessment was to show that, for example, the lighting or the seating arrangements for an employee would pose a risk for ill-health, the employer would be required to take measures to prevent this risk. Such measures could include offering employees work equipment such as a lamp or office chair. However, the need should be assessed on a case-by-case basis.

When it comes to computers and other tools necessary to perform the work, it is common for employers to provide this to employees.

In terms of reimbursing costs such as internet when working from home, there are no legal requirements and it is therefore subject to agreement with the employee. However, it is not uncommon that the employer pays part of the internet fee for employees that are permanently home-based, but it is not required.

Last updated on 24/01/2022

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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Sweden

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Labour law

Pursuant to the Rome I regulation, the employment relationship will, as a main rule, be governed by the law of the country in which the employee habitually carries out his or her work. If the employee does not habitually carry out the work in one country, the contract is governed by the law of the country of the place of business of the employer. However, if it appears from the circumstances as a whole that the work is more closely connected with another country, the law of that other country shall apply. Notwithstanding the above, it is possible for the employer and employee to agree on which country’s legislation should apply, provided another law does not deprive the employee of the protections that would have been guaranteed by statutory law under the applicable legislation, as per the Rome 1 regulation.

In light of this, cross-border remote-working arrangements may open up questions on applicable legislation. It is advisable to check if there are any such issues before allowing such arrangements. In addition, there may also be tax consequences for both the employer and employee. Furthermore,  a cross-border remote-working arrangement might also mean risk from an insurance perspective. Therefore, employers should ensure their insurance covers employees working remotely from another country.

Social security and tax law

Employers who have employees working remotely from another country should be cautious about the tax effects such an arrangement may trigger. An employee working remotely (eg, from home) in Sweden may trigger a taxable permanent establishment in Sweden, which has the effect that a part of the company’s income would have to be taxed in Sweden. If a permanent establishment is triggered, the company would have to register with the Swedish Tax Agency for corporate income tax purposes. It should also be noted that the Tax Agency can look back up to six calendar years for a reassessment of a permanent establishment. It is thereby possible for a foreign company to carry out activities in Sweden for a long time without being taxed in Sweden and having a full reassessment decision from the Tax Agency for previous years.

Furthermore, the company may also have to register for payroll purposes in Sweden, if the employee’s income would be subject to Swedish income tax and Swedish social security contributions. Income tax and social security contributions are to be reported and paid monthly. However, if the employer does not have a permanent establishment in Sweden, and provided that certain criteria are met, the employee may self-report and pay the social security contributions (but not the tax). Even if such an arrangement can be applied, the employer must still register with the Swedish Tax Agency for filing a statement of earnings and tax deductions and to report and pay income tax on the salary paid to the employee.

If a Swedish company has employees working remotely in another country, the employer may become liable to pay income social security fees and taxes abroad on any income that would be attributable to the work undertaken in that country, and may also have to comply with the registration and reporting requirements of that country.

In international cross-border working situations, taxation is not only regulated under domestic law but also double taxation treaties. As these rules reflect the special situation between two states and are the result of negotiations between them, it follows that these rules vary from one double taxation treaty to another. Regarding social security, domestic law, EU community regulations and international social security conventions must be taken into account when assessing which country the employee belongs to and what social security contributions are to be paid in that country. Normally, an A1 certificate would have to be obtained for social security purposes; such certificate states which country’s social security insurance system that the employee belongs to.

It is recommended to seek guidance from an independent tax counsel regarding international cross-border work situations to assess the tax consequences in each case.

Last updated on 24/01/2022

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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Sweden

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The employer is not entitled to unilaterally reduce the employee’s salary or other employment benefits unless provided for in the individual employment agreement or a collective bargaining agreement. Hence, such a measure would require an agreement between the employer and the employee. If the employer implements unilateral salary deductions, the employer may be held liable to pay damages for a breach of contract. Moreover, there is a risk that the employee can claim that the deductions imply an unlawful termination of employment, which could make the employer liable to pay both compensation for losses sustained (capped at 32 months’ salary) as well as general damages.

Last updated on 24/01/2022

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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Sweden

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There are no statutory regulations regarding vaccination requirements in Sweden. However, an employer cannot compel an employee to get vaccinated, and as a main rule, a refusal by an employee to get vaccinated does not constitute a basis for termination of employment. A requirement by an employer for employees to get vaccinated has not been tried legally, but the possibility to demand an employee to get vaccinated is likely very limited. That being said, pursuant to the Work Environment Act, employers must take all necessary measures to avoid risks of injury or ill-health at work. If no other measures than the vaccine are available to ensure a safe environment (eg, other protective measures such as social distancing, wearing face masks or cleaning are deemed inadequate), and if the business cannot eliminate the risk of infection through other protective measures such as working from home, it may be justified to require employees are vaccinated to work from the office. A refusal to get vaccinated by the employee may in such a case have consequences for their employment; for example, the employer may be entitled to move the employee to another position. Such measures shall only be taken if there are special reasons for doing so, based on the needs of the business. The nature of the business will be of importance when making such a legal assessment; for example, if the nature of the work performed justifies such a requirement (health workers in certain medical fields). The legal assessment must thus be made based on the circumstances in each case.

It is important to note that a refusal does not automatically mean that the employer may terminate the employee. The employer must observe the formal rules in the Swedish Employment Protection Act and ensure that there is “just cause” for termination. This would, inter alia, include an obligation to review and offer the individual any free positions within the company the employee is qualified for (and for which the employee doesn’t need to be vaccinated for work environment reasons) before termination of employment can come into question and the threshold for just cause for termination may be reached. 

Last updated on 24/01/2021

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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Sweden

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Requiring employees to be vaccinated in the office may render discrimination claims from employees unable or unwilling to take the vaccine due to characteristics protected in the Swedish Discrimination Act. As mentioned above, an employer cannot compel an employee to get vaccinated. However, the employer must take all necessary measures to avoid risks of injury or ill health at work according to the Work Environment Act. If no other measures than a vaccine are available to ensure a safe environment (where other protective measures such as face masks, safe distancing or similar are deemed inadequate), it could be argued that it is justifiable to ask employees to be vaccinated to work from the office or continue homeworking until the rate of infection has gone down, if this is necessary and proportionate to ensure a safe working environment.

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

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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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Sweden

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There are no such requirements for any sector. There are currently no recommendations from relevant Swedish authorities that employers should treat unvaccinated employees differently to vaccinated employees.

Last updated on 21/09/2021

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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Sweden

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Medical and vaccination information relating to an individual constitute health data, which is considered a special category of personal data under article 9 of the General Data Protection Regulation (GDPR). The main rule is that the processing of such data is prohibited, unless there is an applicable exemption to process the data (for example, that processing is necessary for the employer to fulfil their obligations and exercise their special rights within labour law and in the areas of social security and social protection). From a general employment law perspective, however, it does not appear necessary for the employer to register or draw up lists of employees’ immunity in any way to fulfil an obligation or right within labour law and in the areas of social security and social protection.

Article 9.2 (i) GDPR offers another exemption to the general prohibition to process special category data: it may be lawful if the processing is necessary for reasons of public interest in the area of public health, such as protecting against serious cross-border threats to health or ensuring high standards of quality and safety of health care and medicinal products or medical devices. However, such processing must be based on EU or member state law, which normally does not apply for “ordinary” businesses.

To summarise, the opportunity for employers to lawfully process employee medical data and data on vaccination under the GDPR is very limited.

Last updated on 24/01/2022

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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Sweden

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Under Swedish law, employers have overall responsibility for the employee’s work environment and must take all necessary measures to prevent employees from being exposed to risks of injury or ill-health. This responsibility lies with the employer irrespective of whether the work is performed at the office or remotely. Employees, however, also have an obligation to participate in work environment management and should participate in the implementation of any measures necessary to achieve a good working environment, as well as draw attention to potential safety risks. A close dialogue between the employer and employees is important, and often even more so where the work is carried out remotely.

The employer’s management of the working environment should be conducted systematically, ensuring that it fulfils applicable rules and regulations for a good work environment. This systematic management should include risk assessments of the business, active measures, and follow-ups in respect of the work environment. Furthermore, employers must, as a main rule, implement adequate action plans and policies to ensure a safe working environment. In companies with many remote workers, it is generally a good idea to set up clear guidelines for remote-working routines (eg, regarding support, communication and physical equipment).

Last updated on 24/01/2022

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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Sweden

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Employers’ legal responsibility for their work environment, as such, has not been impacted by the pandemic. However, in practice, employers have been forced to quickly adapt to the new situation and face new challenges due to the pandemic. As many employers have not had any routines regarding the work environment beyond the physical workplace, it has been important to assess what risks there are concerning employees physical and mental health and how they can be minimised.

Last updated on 24/01/2022

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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Sweden

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An employer’s legal responsibility is the same irrespective of whether the work is to be performed primarily from home or remotely. However, an employer’s ability to control and assess an employee’s working situation is naturally more limited for remote workers and places great demands on the employer’s systematic management of the work environment. Risk assessments must be conducted regularly and the employer must foresee what risks can arise in different situations. Furthermore, the dialogue between an employer and employee is important so that the employer is informed of any issues regarding the work environment.  

Last updated on 24/01/2022

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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Sweden

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An employer’s systematic management shall include both psychological and social circumstances that have an impact on the work environment. This also means a general obligation to regularly assess working conditions and to be attentive to employees’ wellbeing. Managers and workers with supervisory functions shall be aware, in the day-to-day business, of warning signals indicating mental health issues, such as increased absences from work, silence and fatigue at work or high activity on email or the telephone outside working hours.

Last updated on 24/01/2022

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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Sweden

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In April 2020, new legislation enabled employers affected by temporary and serious financial difficulties that could not reasonably have been foreseen or avoided (eg, due to the coronavirus situation) to reduce their employees' working hours and receive financial support from the Swedish government. The government covered three-quarters of the cost for the reduced working hours and the employer and employee shared the cost of the remaining quarter. For employers to receive support, the employer must have made use of other available measures for reducing labour costs, such as terminations of personnel not permanently employed and not regarded as being critical to business operations. The  possibility of receiving financial support under this legislation ceased to exist in September 2021.

New legislation on financial support has been proposed to apply from December 2021 to March 2022 for employers that have lost at least 30% in revenue. Affected employers will be able to receive support of 70% or 90 % (depending on the size of the company) of their fixed costs, such as salaries and rent, that they are unable to cover.  

The rules for termination of employment are the same regardless of the covid-19 situation. To terminate an “employment until further notice” under Swedish law, "just cause" is required. Just cause can either be related to personal reasons (eg, poor performance and misconduct) or redundancy. It is significantly more difficult to terminate an employee due to personal reasons (reasons relating to the individual employee) than due to redundancy. In general, termination due to personal reasons is considered a last resort by the courts. Redundancy on the other hand is deemed, as a main rule, to constitute just cause for termination of employment and there is no general obligation under the Employment Protection Act (EPA) to justify the redundancy (eg, with financial information or similar). The employer, however, must observe material and formal rules laid down by the EPA concerning redundancy terminations (as well as termination due to personal reasons).

Last updated on 24/01/2022

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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Sweden

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In Sweden, the same rules and regulations regarding employment protection also apply to remote workers. Therefore, few measures have been taken by unions or worker associations in this regard. However, worker associations and unions have actively encouraged employers to allow remote working to protect workers from covid-19 and create a safer working environment.

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)?

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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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Sweden

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If an employer is bound by a collective bargaining agreement, the employer, as a main rule, should request and conclude trade union negotiations before implementing an obligation to work remotely. Trade union representatives can present their views on this arrangement in the negotiation. However, a trade union cannot alter or veto the employer's homeworking arrangements (assuming that the collective bargaining agreement does not prohibit remote working). That being said, a trade union may take action if there are deficiencies in the working environment for employees working from home.

If the home-working arrangement is voluntary for employees, there is generally no obligation to perform trade union negotiations. The trade union, however, has a right to be informed about any changes relevant for employees under section 19 of the Swedish Co-Determination (in the workplace) Act.

If there is no collective bargaining agreement in place for the employer, there is no obligation to request trade union negotiations. Depending on the individual circumstances (eg, if it is a permanent solution and if the employment agreement allows for such a change of workplace) an agreement with the individual employee may be required for the employer to impose an obligation to work remotely on employees.

Last updated on 21/09/2021