The very recent spread of the coronavirus (COVID-19) across France has obviously led to significant concerns in the workplace.
The recent announcements by the French government for Companies which are not under a closure obligation (restaurants, cafés, malls, shops, etc.), on how to handle mandatory lockdowns, safety and health rules, travel restrictions, compensation, and other employment issues are unclear. For example, it is very difficult to determine what businesses -essential or non-essential- are to be closed or to be maintained during the epidemic. This is a result of miscommunication by the French government. A number of decrees and orders (“décrets & ordonnances”) published on March 26th & March 28 th provide some guidance today.
Please find hereafter a Q&A on the general rules which apply to companies in France to cope with Covid-19.
Given the recent announcements, decrees and first analysis, what is the general principle that companies should keep in mind as regards labor law?
According to our information and given a very recent Government’s announcement, it is now very clear that Governmental policy is that companies should organize to maintain their activities to their fullest potential as the economic activity should be maintained as much as possible.
The miscommunications on part of the government over the past few days confused both companies and their workforce as to whether all activities should be stopped.
The rule is now clear: all employees whose jobs permit them to do so must work from home (home office) and the conditions of shut down and reduction of activity will be rigorously enforced by the Labor Administration (please see Q8).
How to implement home office?
Given the threat of the Covid-19 epidemic, employers can implement Home office as an adjustment to ensure continuity of the company’s business and guarantee employees’ protection
An employer can require employees to work from home, even without their consent (except that consent is required for protected employees, such as elected members of a Works council).
If no collective agreement regarding home office exists within the Company or if the applicable CBA of the relevant company does not contain any provisions relating to home office, we recommend: (i) a compulsory implementation with immediate effect where home office is possible, (ii) implement guidelines (“Charte Télétravail”) or if possible a collective bargaining agreement with the unions or with the Works council containing the following:
- Standard compliance of the employee’s residence: employees must acknowledge that their homes are in conformity with the technical and electrical requirements, and provide satisfactory work conditions;
- Workload regulation must be complied with: especially regarding compliance with working hours and the right to disconnect;
- Insurance: the company should subscribe to a specific insurance;
- Coverage of Home office cost: the Company should cover the costs incurred by the employee in connection with his/her work for the use of his/her Internet box, mobile phone and electricity costs (a 50% coverage of all this cost for the home office period of time could be decided)
What are the conditions under which the employer can force employees to return to work?
Because the French Government has decided to maintain the economic activity as much as possible, the eligibility conditions to reduction of activity scheme (“chômage partiel”) are strictly controlled: following this decision, only employees working for companies in which lockdown is mandatory are legally allowed to stop working. The following employees cannot be forced to return to work:
- Employees who can work from home (home office);
- Employees who are under medical leave, or who are considered as being “at risk” and should ask for a medical leave1;
- Employees who do not have childcare facilities for children under 16 and who asked for work leave for the duration of the closure of the childcare facility.
The Company could force the employees who do not meet the abovementioned definition to resume work provided, sufficient and appropriate health and safety measures are implemented, otherwise the employees may exercise their “right of withdrawal” (droit de retrait) (see #4).
Therefore, the following minimum health and safety measures must be implemented within the Company:
- limit gatherings and use remote communication tools;
- remind the standard recommendations to prevent the spread of infections, namely compliance with usual hygiene measures, in particular washing the hands frequently, coughing or sneezing in the elbow, using disposable tissues, wearing a mask when are sick or in the present case of Covid-19 not to work and request sick leave;
- provide employees with personal protective equipment (disinfectant soap, hydro-alcoholic solution);
- ensure the hygiene of work premises and work tools by asking the maintenance department to pay specific attention to the vectors of the virus spread (door handles in particular, etc.);
- Since 18 March 2020, the employer must deliver to the employees whose jobs do not allow home office with a permanent statement (« justificatif permanent ») to be attached to the move overriding statement (« attestation dérogatoire de déplacement »).
The “Health & Safety documentation” (“Document Unique”) must be updated due to the pandemic. The aim of risk assessment is to « minimize the risk of contagion in the workplace or during work through measures such as preventive actions, information and training actions as well as implementation of appropriate measures, in accordance with instructions from the public authorities”. The employer must also ensure the « continuous adaptation » of preventive actions « taking in consideration the change in circumstances ». For the employer, this means organizing a watch on the news of Covid-19, closely monitoring the development of the situation and communications from the authorities.
In principle, all actions to be implemented require the information and consultation of the staff representatives, subject to precautionary measures to be taken as a matter of urgency. It is recommended to liaise immediately with the secretary of the Works council to agree on the derogatory rules for convening and holding meetings during this period of safety urgency.
If the Company does not legally require the Works council or unions’ approval to force employees to return to work, it is preferred and useful to maintain the dialogue with the Works council and the unions given the circumstances: (i) the elaboration of a collective bargaining agreement with a Health & Safety Plan, provisions on the Home office and working conditions for the employee working in the work premises, and (ii) an efficient communication on the difficulty to benefit from the “reduced activity” allowance from the government could convince the Works council to approve the return to work.
In addition to all the measures to be implemented, and to appease the Works council and employees’ concerns, a decontamination of the work premises before the reopening, assuming partial or full shutdown, could be conducted.
We also suggest to communicate an update on all the measures and efforts implemented by the Company in to protect the employees as well as all the French government’s communication on a regular basis.