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Covid-19: What reactions for employers under French Labour Law ?

Publié le : 05/03/2020 05 mars mars 03 2020
L&E Global

By Frédéric-Guillaume Laprévote, partner lawyer, and Marie Vacassoulis, associate lawyer, Flichy Grangé Avocats, Paris (France)

On January 30, 2020, the World Health Organization (WHO) declared Covid-19 to be a public health emergency of international concern.
 
As of today, the Covid-19  detected in Wuhan city of China has caused more than 85,000 infections and more than 2.900 deaths worldwide. France has confirmed 73 cases of Coronavirus Covid-19  on its territory which in two cases had resulted in death.
 
In the wake of the transition from the epidemic to stage 2, the government has started to implement measures of “social distancing” such as the prohibition of gatherings of 5,000 people or more in a closed environment or the suspension of the whole school trips abroad and, in France, to areas identified as "clusters".
 
The speed of spread of this virus should encourage employers to consider putting implementation of measures to prevent or react to possible situations linked to this Covid-19 taking into account government recommendations (in particular the French Ministry of Solidarity and Health, the French Ministry of Europe and Foreign Affairs and the French Ministry of Labour) and the various official bodies (in particular Public Health France, the Regional Health Authorities and the World Health Organization).
 
A Q&A on the consequences of the Coronavirus Covid-19 for companies and employees was published by the French Ministry of Labor on February 28, 2020 (https://travail-emploi.gouv.fr/actualites/l-actualite-du-ministere/article/coronavirus-questions-reponses-pour-les-entreprises-et-les-salaries). It provides answers to some current questions that employers may ask themselves, even if it has no legal value.
 
This note summarises measures enabling employers to cope with the absences of their employees and with variations in the activity of their company (1.), prevention and protection measures to be implemented in the context of the employer's safety obligation (2.), developments to be anticipated by employers (3.), and the consequences in terms of remuneration in the event of isolation, eviction, home-stay, homeworking or exemption from activity (4.).
 
  1. What measures allow employers to cope with the absences of their employees and variations in the activity of their company?
 
The Covid-19 epidemic is likely to slow down the activity of some companies or, conversely, increase the activity of others. Likewise, some companies are at risk of being absent from their employees, requiring measures to be taken to ensure the continuity of their activity.
 
  1. Measures enabling employers to cope with absences of their employees and / or increase in the activity of their company
 
  • Overtime (C. Trav., Art. L. 3121-28 to L. 3121-40 and D. 3121-17 to D. 3121-24),
 
  • Fixed-term employment contracts and / or temporary employment contracts (C. Trav., Art. L. 1242-1 to L. 1242-11 and D. 1242-1 to D. 1247-2) (C trav., art. L.1251-1 to L. 1251-63, R. 1251-4 to R. 1251-31 and D. 1251-1 to D. 1251-33),
 
  • Extension of the daily and / or weekly working time (C. trav., L. 121-18 and D. 3121-4 to D. 3131-1 to D. 3131-2) (C. trav. L. 3121 -21 and R. 3121-8 to R. 3121-10) (C. trav., L. 3121-22 and R. 3121-8 to R. 3121-11),
 
  • Derogations to daily and / or weekly rest (C. trav., Art. L. 3132-2) (C. trav., Art. L. 3131-1 to L. 3131-3 and D. 3131-1 to D . 3131-2), and / or
 
  • Derogations from the maximum daily hours of night work (C. Trav., Art. L. 3122-6 and R. 3122-1 to R. 3122-6).
 
Some of these measures however require prior consultation of the Social and Economic Committee as well as information or even prior authorization from the Labour Inspector or the Director of the Regional direction of the Companies, the Competition, the Consumption, the Work and the Employment (DIRECCTE). Similarly, some of these measures can only be implemented in special circumstances (examples: urgent work to prevent imminent accidents, repairing accidents that have occurred, organizing rescue measures, temporary increase in activity, replacement of absent employee , etc.).
 
  1. Devices enabling employers to cope with a reduction in the activity of their company
 
  • Partial activity (“activité partielle”) (C. trav., L. 5122-1 to L. 5122-5 and R. 5122-1 to R. 5122-26)
 
The partial activity (“activité partielle”) system  can be requested by companies in the context of supply difficulties in raw materials or energy or in exceptional circumstances (examples proposed by the French Ministry of Labour in the context of the Covid-19 epidemic : administrative closure, ban on public demonstrations following an administrative decision, massive absence of employees essential to the activity of the company, temporary interruption of essential activities, suspension of public transport by administrative decision and reduction of activity linked to the epidemic).
 
Employees who, while remaining linked to their employer by an employment contract, suffer a loss of salary due either to the temporary closure of the establishment (or part of the establishment), or to the reduction of the schedule of work usually practiced in the establishment below the legal working time, benefit from a flat-rate allowance co-financed by the State and UNEDIC :
 
  • € 7.74 for companies with less than 250 employees;
  • € 7.23 for companies with more than 250 employees.
 
The implementation of a partial activity (“activité partielle”) in the company requires a prior opinion from the Social and Economic Committee in companies with at least 50 employees and an administrative authorization.
 
  • FNE-Formation
 
In the event of prolonged lack of activity, or even total cessation of activity, companies can request to benefit from the FNE-Formation in place of partial activity in order to invest in the skills of employees.
 
 
 
  1. What are the preventive and protective measures to be implemented as part of the employer's safety obligation?
In order to comply with its safety obligation, mentioned in article L. 4121-1 of the French Labour Code, the employer must implement measures for the protection of the physical and mental health of employees, in connection with the Occupational Medicine and the staff representatives, the absence of consultation of the latter being liable to constitute an offense of obstruction.
 
By way of illustration, it seems useful to adopt the following measures :
 
  • Refer to the measures provided for in the Business Continuity Plan (Plan de Continuité d’Activité) when such a plan exists. The Business Continuity Plan (Plan de Continuité d’Activité) aims to define the measures necessary to allow the company to continue its activity in the event of a major crisis, such as an epidemic.
 
  • Refer to the Single Risk Assessment Document (Document Unique d’Evaluation des Risques)
 
  • Organize the repatriation of expatriate employees, seconded employees or employees in business trip in areas affected or likely to be soon affected by Covid-19 in the absence of specific measures taken by the French Government as such.
 
If the employee is in the event of a secondment, traveling abroad or posted abroad in execution of a mobility clause, repatriation may be organized as part of the exercise of the employer's management power, by respecting a sufficient notice period if necessary.
 
For expatriate employees or those posted abroad for a fixed period provided for by a clause in their employment contract, repatriation will require their consent. In the event of refusal of repatriation, the employer cannot use his disciplinary power. However, he must make personal protective equipments available to employees who decide to stay in areas affected or likely to be soon affected by the Covid-19 as well as information on the virus and the spread of the epidemic, while asking them, as far as possible, to avoid any professional activity likely to expose them to the virus. The employer must ensure the application of the prevention instructions and the use of personal protective equipment.
 
  • Limit as much as possible the travel of employees, by plane and / or in the areas affected or likely to be soon affected by the Covid-19, in particular by using means of remote communication (Skype meetings, telephone communications, conference calls, emails, etc.) when such recourse is possible. If moving to an area at risk is imperative, the employer must communicate information on the virus as well as the spread of the epidemic to the employee, make personal protective equipments at his disposal and ensure the application of prevention instructions and the use of personal protective equipments.
 
  • Propose the establishment of a teleworking period for asymptomatic employees who have recently traveled in areas affected by the epidemic or who have been in contact with patients or back from areas affected by the epidemic, or even organize an exemption from activity with maintenance of remuneration for a period calculated with regard to the incubation period of Covid-19.
 
If the employee's work station allows, a homeworking period may be implemented. In the event of exceptional circumstances, in particular of threat of epidemic, or in the event of force majeure, Article L. 1222-11 of the Labour code provides that the implementation of homeworking can be considered as an adjustment of the work station made necessary to allow the continuity of the company's activity and guarantee the protection of employees. In such a circumstance, the implementation of homeworking does not require the employee's prior agreement.
 
  • Inform employees likely to have been exposed or to be exposed to Covid-19 (via display, website, emails, information sessions, etc.).
 
  • Provide employees with personal protective equipment (surgical mask, protective mask, spray mask, disinfectant soap, hydro-alcoholic solution, gloves, etc.), in particular for employees exposed to risk (namely expatriates employees, seconded employees or employees in business trip in areas affected or likely to be soon affected by Covid-19 and the employees in contact with people coming from or likely to come from areas affected by the epidemic).
 
  • Organize training actions for employees likely to be exposed to Covid-19. These training courses may relate to the measures implemented by the Management, "barrier" gestures, the procedures for using individual protective equipment, etc.
 
  • Plan regular disinfection of premises and work tools in the event of exposure or risk of employee exposure to Covid-19. In the event of contamination of an employee who has frequented the company’s premises, it will be necessary to decontaminate the premises in accordance with the recommendations of the authorities and, in particular, of the French Ministry of Labour (Q / R Covid-19, February 28, 2020, n ° 18).
 
  • Possibly provide psychological support for employees likely to have been exposed or to be exposed to Covid-19.
 
  1. What developments be anticipated by employers ?
 
Employers could also be confronted with employees who would exercise their right of withdrawal (droit de retrait), or even with the exercise of a right of alert (droit d’alerte pour danger grave et imminent) for serious and imminent danger by a member of the Social and Economic Council (or a member of the health, safety and working conditions committee). Certain employees have already used their right of withdrawal due to the epidemic of Covid-19 in order to stop their work and request an adjustment to their working conditions. In these conditions, employers are recommended to prepare for the initiation of an investigation and, if necessary, to address the potential consequences when the risk is characterized. It will be recalled that the benefit of the employer's inexcusable fault (faute inexcusable) is de jure for the employee or employees who would be the victim of an occupational disease when they themselves or a staff representative on the Social and Economic Council had reported to the employer the risk that materialized.
 
Employers may also have to face requests for recognition of Covid-19 as an occupational disease (maladie professionnelle) by infected employees.  Indeed, a characterized illness not designated in a table of occupational illnesses can also be recognized of professional origin when it is established that it is essentially and directly caused by the victim's usual work and that it results in the death of this or a permanent incapacity at a rate at least equal to 25% after an opinion from the regional committee for recognition of occupational diseases. In case of such requests for recognition of the professional origin of contaminations by Covid-19, it would be up to employers to assess the opportunity to challenge such a qualification and the consequences which would result from it, having regard to the circumstances of each individual case. With regard to the possible challenge to the professional origin of the contamination, the question would be asked whether the pathology was indeed contracted during the employee's usual work.
 
It will be recalled that the employment contract of the employee who suffers from an occupational disease is suspended for the duration of the sick leaves caused by the illness. During periods of suspension of the employment contract, the employer can only terminate the latter if he justifies either a serious fault on the part of the person concerned, or he is unable to maintain this contract for a reason unrelated to the illness. At the end of these periods, the employee must return to his job or a similar job with at least equivalent remuneration. The consequences of an occupational disease cannot cause the employee any delay in promotion or advancement within the company.
 
Finally, if the epidemic were to spread, employers should consider updating their Single Risk Assessment Document (Document unique d’évaluation des risques) in light of the work situations observed as well as adopting or updating their Business Continuity Plan (Plan de Continuité d’Activité). It should be noted that the failure to prepare and update the Single Risk Assessment Document (Document unique d’évaluation des risques) exposes the employer to a fine of 1,500 Euros (3,000 Euros in the event of a relapse) and to a conviction for inexcusable fault in the event of a risk. Recognition of the employer's inexcusable fault (faute inexcusable) allows the victim or his dependents to obtain an increase in their pension, and additional compensation for various damages suffered and not repaired by the increase.
 
  1. What are the repercussions in terms of remuneration in the event of isolation, eviction or maintenance at home, of homeworking or exemption from activity ?
 
In the event of isolation, eviction or maintenance at home with impossibility of working, a decree n ° 2020-73 dated January 31, 2020 determines the conditions for payment of the sickness benefits delivered by the health insurance schemes for the people who are the subject of a measure of isolation, eviction or home support and find themselves unable to work.
 
This decree provides for the possibility of opening the right to daily allowances (indemnités journalières) for a period of 20 days without the conditions for opening the right relating to minimum durations of activity or minimum contributivity being met. It also plans not to apply the waiting periods, in order to allow the payment of daily allowances from the first day of stoppage.
 
Stoppages of work with a view to isolation due to coronavirus or the care of a child subjected to an isolation measure are prescribed by the doctors of the French Regional Health Agency (www.ars.santé. fr). As a reminder, the occupational doctor cannot prescribe a work stoppage.
 
In the event of exemption from activity granted by the employer to one of his employees in order to keep him away from the premises of the company, the remuneration must be maintained by the employer. The absence must be assimilated to a period normally worked opening the benefit to the same rights as the employees present in the company.
 
In the event of an occasional homeworking period, the remuneration must also be maintained by the employer.

 
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