In order to encourage employers to exceed their obligations in the context of rising fuel prices, provisions regarding the cost of compulsory or optional home-to-workplace transportation have been made more flexible in the amended finance law for 2022.
Questions about the extent to which the employer should cover transportation costs also arose for judges in the context of increased urban migration and the development of telecommunications with the Covid pandemic.
Reminder of existing systems
(i) A mandatory system: payment of public transport passes
Employers must pay 50% of the subscription fee made by their employees for the entire journey between their habitual residence and workplace using public transport services, even if multiple subscriptions are required for this journey (Article L 3261- 2 of the French Labor Code). This also applies to public bike rental services.
(ii) Two optional schemes
- transportation bonus: This allows the employer to pay all or part of the fuel or power costs of non-thermal vehicles for employees who meet either of the following two conditions:
- The employee’s usual residence or workplace must be in a town where there is no regular public transport service and must not be included in a mandatory mobility plan (plan for towns with more than 100,000 inhabitants)
- Personal vehicle use is essential, given the specific working hours that do not allow the use of public transport (Article L 3261-3 of the French Labor Code)
- Sustainable mobility package: this allows the employer to pay all or part of the costs of alternative transport, known as soft mobility (for example, bicycles, scooters or car sharing) (French Labor Code L 3261-3-1).
In a Q&A posted online on Sept. 5, the Ministry of Energy Transition details the payment methods available for this package:
- Cycling contingent lump sum payment
- Lump sum per kilometer driven or number of practice days
- Contribution to actual expenses (buying or renting the bike, accessories, subscription to a secure bike parking lot, etc.)
- For car sharing: reimbursement of costs incurred as part of cost sharing between driver and passengers.
The amount, terms and criteria for the allocation of these two schemes are determined by the articles of association or, in the absence of this, by the sector agreement, or in the absence of an agreement, by the employer’s unilateral decision after consulting the CSE.
Each of these two plans is exempt from taxes and contributions and CSG/CRDS up to a limit of 500 Euros, it is stated that the exemption limits are not cumulative if the two plans are used together.
Flexibility in existing schemes
This flexibility takes the form of increasing the number of employees who qualify for transportation bonuses, a new possibility to consolidate existing plans, and also raise exemption limits.
(i) Transport bonus available to all employees
For the years 2022 and 2023, all employees who incur fuel or electricity costs for travel between their usual residence and place of work are now eligible for a transportation bonus without having to meet the requirements of Article L.3261-3 of the French Labor Code.
Thus, the transportation bonus is now available to all employees, even those who have the opportunity to use public transportation.
(ii) It is now possible to combine the transport bonus with the public transport card
Whereas Article L 3261-3 expressly prohibits the combination of transport bonus and public transport card reimbursement, the combination of transport bonus and sustainable mobility package is now allowed.
The changed fiscal law authorizes this accumulation for the years 2022 and 2023.
(iii) Increase in exemption limits
- For two optional devices
For 2022 and 2023, the tax and social security exemption ceilings for the transport premium and the sustainable mobility package have been increased from 500 euros to 700 euros, including 400 euros for fuel costs (compared to the previous 200 euros).
- Combining a sustainable mobility card with a public transport card
The ceiling for tax and social security exemptions was increased from 600 euros to 800 euros.
Unlike other flexibility measures limited to 2022 and 2023, This increase in the exemption limit is not time-limited..
- The employer’s contribution to the cost of public transport exceeds the mandatory 50%.
For 2022 and 2023, employer contribution beyond the mandatory 50% of public transport pass is exempt from social fees.
However, this exemption is limited to a maximum of 75%.
Employer to cover transportation costs
The curfew brought about by the Covid pandemic, as well as the development of digital tools, has allowed for new forms of work to emerge, which can raise issues of employer obligations to cover transportation costs.
(i) Does the employer have to cover the transportation costs of an employee who chooses to move to the provinces during the pandemic period?
In its decision dated July 5, 2022, the Supreme Court of Appeals ruled that an employee who established his/her main residence in the countryside due to the first curfew should pay the employer for transportation expenses.
The employer had refused to pay for transportation costs, on the grounds that the company’s internal rules limited payment to commuting trips of up to four hours per day (not including public transport from the station to the workplace).
According to the Court, by placing a maximum geographical distance criterion between the place of ordinary residence and the workplace, the employer added a condition not foreseen in the law, regulations or collective bargaining agreements applicable to the company.
In terms of reimbursement of transport costs, case law consistently refers to the concept of “ordinary residence” to determine whether transport costs (e.g. province – Paris) are to be borne by the employer.
Ordinary residence, according to case law, is the place where the employee establishes his family life.
(ii) Does the employer have to pay the transportation costs of the telecommunication worker?
The prevailing principle is that the employer is obliged to pay half of the public transport toll charged for the journey between the worker’s usual place of residence and the workplace.
Does this obligation continue if the employee works remotely?
Use for traveling between home and work and according to L 1214-3 of the French Labor Code.
Article L 1222-9 of the French Labor Code lays down the principle that “the teleworker has the same rights as the employee who does his work on the company premises”.
However, the question may arise if the employee is only working from home.
Neither the French Supreme Court nor the administration has yet decided on such a case.
However, if the employee has to go to the company premises (eg for meetings), the employer will be obliged to reimburse the employee’s travel expenses in accordance with legal requirements.