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

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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  • 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

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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  • 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

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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  • 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