Social law. Since the health crisis, the specialized government training of the “Health Defense” counseling has become a near-source of law. This decision structure self-organized by the Executive is competent by a broad interpretation of the notion of “national security”. Originally, the Constitution of the VE REPUBLIC attributes to the regulatory authority a competence of principle, while it entrusts the legislator a limited jurisdiction: Parliament has essentially the function of legitimizing and supporting the government’s action.
The French law is as much the work of the government, with powerful tools, that of Parliament. It is also known that the use of orders – a transfer of legislative power to the executive with posterior ratification, is growing in the field of social. There is therefore the government announcement, at the end of a “health advice”, broadcast either directly in the media or through press releases, then in Fairs to Questions (FAQs) or “Questions and answers” published on ministerial and transcribed sites, sometimes, later, in ministerial circulars.
Thus, during his speech of December 27, 2021, the Prime Minister indicated that from the start of the school year and for a period of three weeks, “the use of teleworking will be made mandatory […] for three days minimum per week and if possible four days, when it is possible “. On December 30, the Minister of Labor, Elisabeth Borne, announced wishing to punish recalcitrant companies with mandatory teleworking.
Recommendations and not bonds
The subsequent law of 22 January 2022 allows the labor inspector, implementing a special procedure, to sanction the employer of an administrative fine of 500 euros per employee, since the non-compliance with the principles prevention generally born a dangerous situation resulting from a risk of exposure to COVID-19. We could therefore think that non-compliance with the temporary teleworking organization can be sanctioned in this way.
It’s nothing. According to the Council of State, the health protocol is only “a set of recommendations for the material declination of the employer’s safety obligation, within the framework of the CVIV-19 epidemic, recalling the obligations that exist under the Labor Code “. The organization of the distribution of teleworked time is not governed by the Labor Code. It falls under the extended national interprofessional agreement of November 26, 2020, which, in an emergency, for example during a pandemic, refers to the sole organization of the employer.
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