Teleworking has become widespread since the health crisis, including in laboratories, biotech and medtech. The idea here is not to praise or criticize it, but rather to focus on accidents that can affect teleworkers. Outside the company walls, distinguishing a domestic accident from a work accident can be tricky, making prevention essential.
Qualifier l’accident
Any accident occurring as a result of or during professional activity is presumed to be work-related, including teleworking. If the accident occurs at the place and during teleworking, the employee benefits from the same presumption of imputability as if he or she were working on the company’s premises. Otherwise, he or she must prove that the accident is related to his or her professional activity. What lessons can be learned from this?
Working hours – An employee who falls after having clocked out virtually – and therefore finished her teleworking day – cannot benefit from the presumption of imputability (CA Amiens, June 15, 2023, no. 22/00474). Supervising the working hours of teleworkers and deploying tools to monitor their professional activity (digital time clocks, log in / log out, etc.) is therefore useful, while respecting the principles of transparency, proportionality and the right to privacy. The agreement or charter on teleworking, as well as that on IT, are legal supports to be considered for this purpose.
Employees on a daily flat-rate must be given particular attention, due to the autonomy in the organisation of their work imposed by their status, which is not contradictory to the setting of time slots of availability or control at connection/disconnection, which may also prove relevant for monitoring compliance with rights to rest and disconnection.
Workplace – A teleworker who injures himself on the public highway while looking for the cause of an Internet outage does not benefit from the presumption of imputability since he has agreed with his employer that his place of telework is understood to be his home (CA St-Denis de la Réunion, May 4, 2023, no. 22/00884). Precisely defining the place of telework is therefore crucial. Already recommended for tax, immigration, social security and insurance reasons, the usual residence or the coworking space declared in France are to be preferred, as they are the only ones over which the parties can exercise control.
Professional cause – Work must be the cause of the accident for the presumption to apply. Finding the origin of a computer breakdown was not part of the employee’s mission in the aforementioned case. By taking this initiative, the employee was not only no longer at his workplace but he was also no longer under the authority of his employer (to the same effect: Versailles Judicial Court, June 27, 2024, No. 23/01037). Inquiring precisely about the circumstances in which the accident occurred is therefore decisive, knowing that if the employer does not have to judge the work-related nature of the accident, he can accompany his declaration with reservations.
Assess and prevent risks
The assessment and prevention of occupational risks related to teleworking is part of the employer’s safety obligation. They must not be neglected, at the risk of exposing oneself to prosecution in the event of an accident, in particular for inexcusable negligence when the employee is the victim of an accident at work while the employer was or should have been aware of the danger to which the worker was exposed and did not take the necessary measures to protect him from it. If the employee succeeds in proving this, he is entitled in particular to an increase in the annuity or capital compensation owed to him and the employer must reimburse the CPAM for the various sums it has advanced.
Inform and train – To justify having taken all the necessary measures, information and training are essential. They must cover the characteristics of teleworking, equipment, insurance, professional expenses, the articulation between face-to-face and remote work, and the prevention of psychosocial risks (management of isolation, reduced interpersonal relationships, use of digital tools, etc.). Raising awareness among managers and colleagues about remote working, including the detection of distress signals, is also useful.
Equip and control – Personalized and adapted equipment, combined with ergonomic rules, helps reduce the risk of accidents and contributes to prevention. Even if this is somewhat theoretical, the employer, a member of the CSE or the administration can also ask the employee to visit their telework location, to check compliance with hygiene and safety rules.
Philippe Thomas (Partner), Thibault Meiers (National Partner), with the kind contribution of Charlotte Lauthier
Source: www.usinenouvelle.com
