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Presumption of resignation in case of continued absence | Extension of social security measures for teleworking cross border workers

Published on : 10/01/2023 10 January Jan 01 2023
Newsletter / New legislation

Presumption of resignation in case of continued absence  

As the law currently stands, when an employee is continuously absent and does not provide their employer with any information, the latter must formally compel the employee to come back to work. It is only if the employer is unsuccessful after having given this notice that a dismissal process (generally for gross misconduct) may be launched. The employee can therefore benefit from unemployment insurance, unlike, for the most part, employees who resign. The so-called "Labor Market" law dated December 21, 2022,   created a presumption of resignation that applies to cases where employees are voluntarily and continuously absent. 

Faced with such a situation, employers will still have to give formal notice (by means of a registered letter) to the employee requesting that he or she justify his or her absence and return to work within a certain timeframe (which is yet to be defined by decree). If the employee does not return to work, he or she will be deemed to have resigned. He or she may challenge this termination before the labor court (Conseil de prud'hommes). The latter should theoretically issue its decision within one month following the referral. Exact terms and conditions of this new measure will be determined by decree.

Extension of social security measures for teleworking cross border workers

European regulation in relation to social security lays down a simple rule: a person working in several countries of the European Union can only contribute in one country. Thus, a person working in a border country and teleworking in his/her country of residence can only be subject to one social security system.

In this case, the frontier worker remains subject to the social security of his usual country of work if the work in his country of residence within the framework of telework does not reach 25% of his global working time / or of his remuneration.

This threshold is assessed over a calendar year.

If this threshold is exceeded, the worker will be affiliated to the social security system of his/her country of residence.

In the context of Covid crisis, it was decided that telework in these exceptional circumstances should not lead to a change in the affiliation of the worker concerned to his/her usual social security scheme. 

This flexibility is expected to be prolonged until 30.06.2023 which means that even if teleworking more than 25% of this time in a different country where he resides, the employee will remain subject to the usual place of work social security regime.

The European legislation applicable to social security coverage in border and cross-border telework situations may change as of July 1st, 2023.
 
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