Telework and the French “Right to Disconnect”

The following is a guest post from Nicolas Boring, the foreign law specialist covering French- speaking jurisdictions at the Law Library of Congress. Nicolas has previously blogged about “Bastille Day” Is About More Than the Bastille, among others.

In 2016, the French government adopted a labor law that, among other provisions, included a right to disconnect. This right, which took effect on January 1, 2017, refers to employers’ obligation to stop encroaching on their employees’ personal and family lives with calls and emails. Under the right to disconnect, employees do not have to take calls or read emails related to work during their time off. While it was confirmed by the 2016 law, the concept of a “right to disconnect” was actually born several years earlier, with a judgment of the Cour de cassation, France’s highest court. In a decision of February 17, 2004, the court found that an employee’s failure to answer his work phone outside of his regular hours of employment was not a valid reason to fire him.

The right to disconnect is now codified into article L2242-17 of the Code du travail (Labor Code). The Code does not define exactly how the right to disconnect is to be implemented, leaving employees and employers to determine the arrangements that best suits their needs and line of work. Indeed, article L2242-17 simply requires annual negotiations between employers and employees to determine the limits between the latter’s work and personal lives. However, the right to disconnect is taken seriously, as illustrated by a 2018 decision of the Cour de cassation which ruled that an employee is entitled to extra pay whenever he/she is asked to be available to take work-related phone calls outside of his/her regular work hours.

While implementing the right to disconnect seems relatively straightforward when employees work in a location that is distinct from their home, it can be a little trickier when they telework. This issue has become even more salient in recent months, as a huge number of people – in France like elsewhere – have been forced to work from home because of the COVID-19 pandemic.

The section of the Code du travail that governs telework (articles L1222-9 to L1222-11) does not explicitly mention the right to disconnect, but refers to it implicitly. Indeed, article L1222-9 requires that telework arrangements specify how the employer may monitor the employee’s work hours or, if work is arranged on a per-task basis rather than an hourly schedule, how the workload is to be managed. More importantly, the telework arrangement must specify when the employer can expect to be able to reach the employee.

Given the sharp and sudden rise of telework due to the coronavirus lockdown that began in March, the French Ministry of Labor published an FAQ on telework on its website. This FAQ confirms that “employees’ right to rest and all rules regarding work time remain applicable” to telework, and that “the distinction between work time and leisure time must be clear and guarantee the employees’ right to disconnect.”

Therefore, even when teleworking, employers and employees must do their best to keep distinct work hours, and employees have a “right to disconnect” during their personal time. This is not always easy as a practical matter, however, especially for employees with children, and especially when those children are at home because of school closures. The Ministry of Labor acknowledges this in its FAQ, which recognizes that “productivity cannot be the same when the employee simultaneously cares for his/her children,” and requests that “employers be understanding and take that into account in their relationship with their employees.” Nevertheless, if childcare or other circumstances make full-time telework impossible, employees may apply for a partial unemployment scheme payment to help make up for lost income when they go from full-time to part-time employment. This scheme, which is governed by articles L5122-1 to L5122-5 of the Code du travail, was expanded in March as part of the government’s response to the coronavirus crisis.