The COVID-19 pandemic and the measures put in place in response in countries around the world – including Monaco – have compelled both employers and employees to adopt a new vision for work. Countless companies and government agencies have sustained themselves during the crisis by having employees conduct their work from home.
Now, nine months after the beginning of the pandemic, many of these measures, such as home-office remote work, have proven so effective they are being considered for the post-COVID-19 future. But remote work raises a host of legal and administrative challenges. This article – based on the 24 November 2020 webinar The Future is Now: The New World of Work in Monaco and hosted by employment lawyers Sophie Marquet, Sylvain Neron and Florence de Guzman with CMS Monaco – discusses how telework and home-office work have impacted the Monegasque workplace, and explores the challenges that these forms of employment pose for workers and companies, both now and in the years to come.
Many Monegasques businesses are implementing remote work outside of the strict letter of the law: CMS Monaco offers solutions to eliminate this legal risk
In Monaco, like much of the world still embroiled in the COVID-19 pandemic, Monegasque businesses are wrestling with the best way to proceed vis-à-vis the health and safety of their workers and staff, explains Sophie Marquet, the partner leading the employment law practice at CMS Monaco.
"Many employers are still hesitating between having employees return to the companies or maintaining distance working," said Marquet, "while other companies simply forbid workers to come to the work place."
As a result, a large number of Monaco-based employees are now working remotely from home, an option that diminishes the risk of COVID-19 infection, but has created other concerns, such as the long-term sustainability of remote working in both a practical and legal sense.
For remote working to be sustainable, a Monegasque company must adhere to the regulations imposed by the Principality's teleworking law, and understand that government decrees on remote working issued during the crisis do not offer a permanent solution.
Telework, remote work and associated benefits and risks
Despite the benefits of remote working, this form of employment is fraught with legal uncertainty in Monaco.
Although 'teleworking' is recognised by Law No. 1429 passed in 2016, this form of employment – as it is strictly defined by law – was neither common nor popular in Monaco with few Monegasque companies and employees fitting the profile for its use.
After the pandemic struck Europe in March 2020, the Monegasque government responded to this gap by passing a decree allowing for the use of 'remote work' –distinct from telework – in order to protect the Principality's workers. According to this decree, companies unable to adopt remote working systems for staff were obliged to explain why.
Another piece of legislation, Law No. 1488 passed on 11 May 2020 further formalised remote employment and ensured that Monaco's remote workers would be eligible for all social contributions. This law also obliged companies to allow consenting employees to work remotely if they desired, although this legislation remained in force only a short time.
The upshot: these ad hoc decrees offered only temporary solutions. Currently in Monaco, remote work – distinct from teleworking –remains widely used in the pandemic. But remote work is without legal certainty since its only source is a Ministerial decree dated 14 May 2020 that does not detail any of the conditions under which it can be implemented.
In short, Monegasque companies are relying on this Ministerial decree instead of strictly implementing Monaco's 2016 teleworking law, which defines employees and employers rights and duties in a much more detailed way, and brings predictability and reduces risks in the contractual relationship’s execution.
CMS Monaco labour specialist Florence de Guzman cautions that companies cannot implement teleworking without the consent of workers. These conditions "must be agreed between them," explained de Guzman, and include the following four-step process:
Companies must draft a framework document for implementing a teleworking regime, which includes specifying the locations where teleworking will be carried out and the conditions for eligibility. The framework should also detail the conditions under which teleworking is implemented, and how the employer will support teleworking employees through the reimbursement of expenses and provision of equipment.
Employee representatives (e.g. labour unions, works councils) should be briefed on the company's plans to implement teleworking. Employee reps are not obliged to participate in the drafting of the framework, but these representatives should be fully informed in advance.
The teleworking framework must be submitted to Monaco's labour inspectorate, which will review it for compliance. The inspectorate is obliged to provide an answer on approval within two months after submission. The company's teleworking framework can only be implemented upon approval by the inspectorate (or if the two-month deadline for approval has passed without a response).
Crucially, teleworking can only be implemented with the consent of both parties: employee and employer. Hence, once authorisation to implement the framework has been received from the inspectorate, the company will implement it by updating its employment agreements through contract amendments, modifications or addendums.Work permits must also be revised to reference teleworking.
The employer is faced with specific obligations in the implementation of a teleworking regime at its company, which include:
As stated above, covering the costs of teleworking by providing each employee with the necessary equipment (e.g. computers, phones, etc.) and specific compensation for using his home as an office.
Inform each teleworking employee on the best way to manage company information and data while working remotely. (This point is not an obligation, but rather a strong recommendation.)
Create a schedule for monitoring and communicating with each teleworker that respects the employee's privacy at home.A clear distinction between work and private time must be established, and should not be breached.
Lastly, Florence de Guzman points out that each employment agreement must include a clause that allows the employee to terminate teleworking unilaterally, and recognition that the employer also can terminate the teleworking agreement without employee consent. In short, mutual consent is necessary to implement teleworking, but either party can unilaterally end the agreement.
Risks and challenges of teleworking
There are pitfalls to teleworking, states CMS Monaco employment specialist Sylvain Neron, which are both personal and legal, and constitute risks that employers and employees should be aware of.
According to Neron, employers should use the controls at their disposal to ensure that all teleworking employees are being treated fairly under Monaco law with particular attention to the following pieces of legislation:
Law No. 1457 as it applies to harassment. Employers must take care that their professional expectations of teleworkers do not cross a boundary into harassment (e.g. by demanding after-hours work, after-hours communications, etc.).
Article 989 of the Civil Code as it applies to the "duty of loyalty and safety" towards employees. This law expects the employer to honour the conditions of the teleworking provisions in each employment contract.
Law No. 636 as it applies to accidents in the workplace. This obliges employers to ensure that the teleworker's home-office environment is safe, and that the employer is aware that he is liable for all home-office accidents. Employees who injure themselves in the home-office can seek damages from their employers.
Law No. 444 as it applies to "occupational diseases", which also places the onus on the employer to ensure a safe and healthy remote working environment for employees.
Of these laws, CMS Monaco cautions employers to be particularly mindful of the law concerning harassment, since "harassment takes many forms".
Not only repeated "actions" are interpreted as harassment under Law No. 1457, but "omissions" by an employer that contribute to the deterioration of the home-office requirement are also violations. The law specifically states that employers should guard against:
"… Knowingly and by any means whatsoever, in the context of an employment relationship, subjecting a natural person to repeated actions or omissions with the object or effect of degrading his or her working conditions in a way that is detrimental to his or her dignity or that results in an impairment of his or her physical or mental health."
Employers who violate this tenet can face both civil and criminal liabilities, explains Sylvain Neron.
Practical steps for limiting employer liability
With the above risks in mind, employers can adopt concrete measures to reduce the likelihood of potential liabilities. The steps that an employer can take to protect himself and his employees include:
Appointing a representative in the office to oversee harassment issues. This 'harassment official' would recommend systems to ensure the company's full compliance with the law.
The harassment rep would also serve as a source for employees who feel that they are facing or may face harassment while teleworking. Along this line, the company should establish an "alert and assistance procedure", which employees can follow if harassment becomes an issue.
The employer should ensure that its managers have the tools and resources to conduct teleworking operations that promote employee privacy and protection, and comply with the law. In addition, the company should hold training seminars for its staff on how to avoid harassment.
Additional anti-harassment safeguards should be put in place in the form of equipment that can improve the efficiency an employee's home-office environment and policies that support the privacy and dignity of teleworkers.
Support staff should be available to oversee teleworking and respond to issues. This can include requiring the company physician to be fully knowledgeable of the risks to teleworkers, and to be able to intervene if necessary.
Reducing the adverse effects of social distancing
The social-distancing measures that companies must adopt, such as teleworking or creating a safe working environment in the office, pose their own risks for the company in terms of productivity and profits.
But companies can take steps to reduce the adverse affects of social distancing in its various forms. These steps centre on delegating more responsibility to specific managers to oversee workers and teleworkers in ways that fully comply with employee safety and dignity, and the letter of Monegasque law.
In short, companies should empower its managerial staff and supervisors with the following authority:
To utilise teleworking in such as way that is efficient, effective and safe for employees while maximising company productivity.Again, these managers must ensure that teleworking is conducted in full compliance with the law.
To make employee safety a priority and create safeguards to ensure the wellbeing of the company's teleworking staff.
To perform their supervisory roles with the full awareness of their responsibilities to teleworkers and the unique risks that teleworkers may face. Supervisors must make it a priority to eliminate any risks and respond immediately if issues arise.
Lastly, technology can be an effective tool in creating a healthy and productive teleworking environment. By providing teleworking employees with the proper computer and communication equipment that ensures seamless and efficient remote work, employers can do much to improve their employee's home-office experience.
Along these lines, employers are encouraged to adopt an IT policy that is consistent with Article 9 of the teleworking law. But employers should also be aware that the ease of communication and increase in efficiency that technology brings to the workplace and home-office also comes with risks. Email and mobile phones can create a situation where employees working from home are always reachable and perpetually on duty, which – as stated earlier in this article – constitutes an abuse clearly defined by the laws addressing harassment.
To avoid the risks that technology can pose, employers can do the following:
Make sure that employees and managers clearly understand these risks.
Devise policies that include safety requirements addressing these risks, and policies that establish a clear boundary between a teleworker's professional and private life.
Establish penalties for any staff member who does not comply with these rules.
Many companies in Monaco struggling to respond to the COVID-19 pandemic are operating without fully implementing the teleworking scheme resulting from the 2016 law.
"In the new world of work in Monaco, it is strongly recommended to adopt teleworking and [comply with] the teleworking law dating back to 2016 rather than relying on the regimes implemented in March and May" concluded CMS labour employment partner Sophie Marquet.
In short, the remote working declarations issued after the pandemic represents an ad hoc response to the crisis that is well intentioned, but not sustainable. To protect employees and Monaco businesses, employers are advised to implement teleworking as mandated by Monegasque law and put all necessary checks in place to ensure employee wellbeing and compliance with regulations.
For more information on the risks your Monaco-based business may face and the adaptability that can be built into the employment processes, contact your CMS Monaco partner or local CMS Monaco employment law experts: Sophie Marquet, Sylvain Neron and Florence de Guzman.