Teleworking Safety? The Legal Gray Area Of Remote Work Injuries

-Analysis-

PARIS — The devil is in the details. Since the COVID-19 pandemic, teleworking has fully integrated our lives — to the point that almost one in two executives would resign if access to it was denied to them, according to a recent Apec study.

Faced with this great evolution, France’s Labor Code followed suit and now stipulates in article L411-1: “What can be considered as an occupational accident includes any accident, whatever the cause, that occurs through the act of working or when working.” The factors of time, place and subordination therefore play a crucial part when reporting and determining, with the employer and Social Security, a teleworking occupational accident.

But in reality, “remotely injured” employees sometimes find themselves in grotesque legal situations. What about this employee who, while trying to put on shoes, opened a closet and knocked over her ironing board, which fell on her foot? Despite an open fracture of several toes, the unfortunate woman was told by the Paris administrative court that “the circumstances of the accident can’t be considered as constituting a normal extension or relating to the performance of her duties.”

Yet, other incidents qualify as work-related injuries if they occurred in the right time and place. These can include an employee who falls asleep on his Moleskine notebook during a videoconference and opens his cornea, or another who ends up with an eraser stuck in his ear canal after scratching his ear with a pencil (two very real incidents reported by one of our sources).

Case by case

“You have to picture what could happen at your workplace in normal circumstances. You burn your hand when you spill your coffee? Ok, that’s an occupational accident. But you cutting your finger while preparing your evening meal? No, it’s not,” explains Philippe Spach, associate professor of management and human resources at the Leonardo da Vinci University Center.

“The popularity of teleworking has inevitably led to an increase in remote work-related injuries, and now we have to go over minute details. Companies must examine each case individually, because there is no longer any obligation to have any witness — apart from your colleagues’ statements, which made things much easier,” Spach says.

The outcome of these scenarios thus depends not only on the mode of proof, but also on the jurisdiction.

“As long as the Court of Cassation has not ruled on a guiding principle, each court of appeal can make its own decision, even if it means contradicting another. It’s complicated and imprecise, even if jurisprudence clearly shows that an employee benefits from better protection at his workplace than at home,” says Diane Buisson, lawyer at the firm Redlink.

“The court will study the evidence and the circumstances: was the employee connected online? Was he doing something that can be justified during his working hours? It is almost impossible to enact a law that would respond with certainty to each situation,” Buisson says.

Caution is advised

Another emblematic case of this vagueness: on the French island of Reunion, a truck violently hit a telephone pole, cutting the internet connection of a resident of the neighboring building as he was working from home. The man came down to see what was happening and through an unfortunate combination of circumstances, got injured by the pole, which fell on him.

The result: that was not a workplace accident. The court of appeal ruled that the man had left his workstation by stepping out of his apartment.

“What you need to remember from a situation like this,” Buisson explains, “is that you shouldn’t hesitate to inform your employer of every event that occurs at home, even if it seems insignificant to you. In the case of this employee in Reunion, he should have told his employer about the situation before doing anything. If you’re at home, don’t try to manipulate your router — if there’s an accident, you may not be covered, because computer maintenance is not your responsibility.”

Distrust of remote workers

This is another issue at the heart of the problem: who can prove that you really wanted to restart your router to work — and that you were not just fiddling about?

“Everything depends on the law of evidence,” says Jean-Emmanuel Ray, professor emeritus of labor law at Paris 1 Panthéon-Sorbonne University. “The law basically says that whether you’re at the office or at home, it’s the same — but that’s not the case at all! What is surprising is that the rare decisions that were taken tend to be more severe toward the teleworker than the worker on site. Judges aren’t dreamers, and it’s easy to sense some kind of distrust towards teleworkers.”

As for the historic workplace, the fight against teleworking accidents starts with prevention. But what do you do when the workplace is, for example, your living room, and the company can’t check whether you have a suitable seat, standard sockets and no obstacles on the floor that could make you trip?

“Home is not at all a workplace like any other: the employer power’s can therefore only be exercised there marginally,” Ray concludes. “Hide that telework, which we can’t endure to look at, the Labor Code and so judges try to convince themselves, but sooner or later, we will have to take the bull by the horns.”