17 March 2021

Psychosocial risks & potential employer liability due to remote working in a Covid-19 pandemic

How to prevent psychosocial risks and the potential liability of the employer with the increase of remote work linked to Covid-19?

With the COVID-19 pandemic, companies have been led to implement remote work full time for an extended period of time for their employees whose functions justify it. This recourse to remote work, if it often improves the quality of life at work and work life balance, may also lead to psychosocial risks (so-called "RPS") for its employees. In fact, in May 2020, 17% of remote workers indicated that they were in psychological distress . In December 2020, 26% reported that remote work had a negative impact on their mental health.

Yet, any accident occurring at the remote worker's home during his professional activity is deemed a work accident, likely to entail the civil or even criminal liability of the employer. Preventing RPS for remote workers is thus essential for companies. In this context, it is recommended to implement company agreements or policies on remote work providing for means of preventing RPS and good practices, as certain companies have already done so.

1. Psychosocial risks induced by remote work

RPS linked to remote work are numerous and varied and can be seen in such forms: isolation at home, demotivation, stress, prolonged working hours, muscular and skeletal disorders ("so-called TMS"), psychological disorders, increase in addictions.

According to a study by Malakoff Humanis, TMS and psychological disorders were the main causes of sick leaves in 2020 after normal sickness , thus revealing a direct impact of Covid-19 and remote work.

2. Risks for the employer

The main risk for the employer is civil or criminal liability for non-compliance with the general safety obligation. The employer must effectively take the measures necessary to ensure safety and protect the physical and mental health of employees . Thus, in the event of violation of its employees' health, the employer may be required to pay damages. The endangerment offense may also be retained in certain particularly serious cases.

3. Reminder on employer's obligations

The employer must:

Update the unique risk evaluation document (so-called "DUERP"), which identifies in addition to Covid-19 risks, risks related to the new work organization implemented following the pandemic (remote work, reorganization of work space, new work organization).
Put into place an investigation following an alert from the works council (so-called "CSE") regarding the violation of rights to persons, their physical and mental health.
Ensure that mandatory occupational health visits of remote workers are maintained, except if a postponement is possible.
Let employees who wish to do so work onsite one day per week: since January 7, 2021, they can ask to go to the office one-day maximum per week.
Ensure that effective measures to guarantee the right to disconnect are carried out.
Identify employees in distress and take measures where required.
Include the works council (CSE) in defining the practical modalities to implement remote work.

4. Good practices

Various good practices may be envisaged to prevent psychosocial risks:

Remind employees of the rules regarding remote work (referring to the company agreement or policy on remote work and the right to disconnect).
Make available equipment dedicated to remote work to distinguish professional life from personal life
Regularly inform employees on the evolution of the situation globally and at the level of the company
Maintain the link within teams between the manager and his subordinates, for example with regular video conferences to also exchange on everyday work situations.
Ask managers to be increasingly vigilant on RPS, without however intervening in the employees' personal life: in this regard, it is essential to train managers so that they are able on the one hand to listen to their team members, identify situations of weakness and on the other hand organize the remote work of teams.
Maintain work rhythms, regulate the work load and enable rest time.
Implement a means to control working time of employees whose working time is counted in hours.
Advise employees on the work station layout (ergonomics) and propose to pay for work equipment (chair) to avoid TMS.

If these measures to avoid situations of isolation are insufficient to preserve the employee's health in light of his/her specific situation, the employer can authorize him/her to go to the office on certain days, after contacting the occupational health doctor.

In addition to the CSE's mandatory participation, employers are advised to contact occupational health services which can help to articulate the prevention of the COVID-19 risk by implementing remote work, whilst also preventing professional risks related to remote work.

In conclusion, we would strongly recommend companies to negotiate a company agreement on remote work that provides for measures to prevent psychosocial risks. Follow-up actions to monitor employees and particularly fragile situations also need to be put into place, as well as actions to raise the awareness of managers.