What specifically should employers and employees be aware of concerning the new agreement on teleworking? Alexis Glavasevic of law firm NautaDutilh weighs in.
Glavasevic, an associate in employment and litigation/arbitration practices, provided insights and obligations linked to occasional and regular teleworkers during a Monday Amcham luncheon webinar.
As he explained, there are now two new categories of teleworkers: occasional and regular, with the October agreement differentiating between them using a 10% threshold: under 10% of annual working time as telework is considered occasional, while above that is regular (with a calendar year as the reference). Excluded from that, however, are secondments abroad, sales reps, the transport sector, coworking spaces, services provided at clients' outside company premises, smart working, etc.
“Occasional [is] also when an employee carries out work related to unforeseen events,” Glavasevic explained, adding, however, that there is “no definition of unforeseen events… the committee drafted the new agreement with reference to normal situations and circumstances, [but] excluded from reflection all covid situations.”
Glavasevic said that unforeseen events, in his view, most likely “refer to punctual emergencies you may encounter in the company.”
In the case of occasional teleworking, Glavasevic explained requirements include written confirmation by the employer of the authorisation granted to an employee for telework, whereas for regular teleworkers, a written agreement needs to be signed between the employer and worker, i.e., as an addendum to the employment contract. Moreover, in the written agreement should be included details such as days and times of telework during which the employee can be reachable by employers, compensation in the event of benefit-in-kind loss(es), fixed monthly allowance to cover communication and connection costs, to name a few.
The associate also advises, however, to “put in provisions which are not mandatory” which “could be interesting and more protective for both parties.” This could include, for example, conditions for notification of telework. Glavasevic also strongly advises that employers do their utmost to make sure workload and requirements of teleworkers are “identical to those of other employees,” meaning they are subject to same obligations and also can benefit from same rights. “Especially when we speak about the same rights, we speak about working conditions,” for example, including the conditions surrounding overtime as a “teleworker also has the right to disconnect.”
“You have to be careful not to create a situation of discrimination, whether direct or indirect,” he added. This can include information on remuneration, collective rights, but also the processing of data, and employers need to keep an eye on ensuring data protection and “take great care” in GDPR-related considerations.
Health & safety
Like normal employees, teleworkers should be informed by their employers on health and safety policies. Teleworkers are entitled to initiate a company inspection through the Inspectorate of Labour and Mines (ITM) or via a company’s external or internal occupational health and safety service.
For cross-border workers if a number of teleworking days is exceeded (19 days for Germany, 24 for Belgium and 29 for France), the teleworker is taxed in the country of residence, whereas for Luxembourg residents it's taxation as usual if work is carried out within the borders.