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Coronavirus - Employment law update – France

  • France
  • Coronavirus - Workforce issues
  • Employment law

06-03-2020

Overview

In this briefing we address some of the more common questions raised by French employers.

General Principles

French employers should:

  • Monitor and follow advice and guidance from relevant authorities such as the French Government (https://www.gouvernement.fr/info-coronavirus), the Regional Health Agencies (“Agences Régionales de Santé” - https://www.ars.sante.fr/), World Health Organisation (“WHO”)
  • Assess the risks faced by their employees and visitors and implement measures to mitigate those risks, paying particular attention to vulnerable staff (such as those who are pregnant; with impaired immunity etc.)
  • Inform their employees and, where relevant, the social and economic committee (the employee representative body) about their proposed measures
  • Review their need for flexible working and whether existing contracts and working arrangements permit such flexibility, and if not, consider how this might be achieved
  • Review policies governing business travel, holidays, sickness, home working to ensure a reasonable and consistent approach, taking account of their risk assessment and government guidance
  • Review relevant insurance policies and guidance issued by their insurers
  • Update contact details for staff and management
  • Devise arrangements for dealing with staff who have to travel abroad; who may be at particular risk of contracting CoVID-19; or who report symptoms and may have tested positive for CoVID-19

1. Employer’s duty of care – what does the law in France say?

Employers in France have a legal duty to ensure the health, safety and welfare at work of their employees and anyone else who may be affected by the employer’s business, including visitors and members of the public.

Regulations require employers to “take the necessary measures to ensure the safety and protect the physical and mental health of employees”. Moreover, employers may be liable for any damages suffered by anyone else who may be affected by the employer’s business. This duty is a continuing one, and assessments must be recorded.

Employers should therefore consider whether their existing arrangements for protecting staff and visitors take account of the risks arising from CoVID-19 and they should regularly re-assess those risks as the situation develops or new guidance is issued by the government, the Regional Health Agencies (“Agences Régionales de Santé”), or the WHO. This would include conducting risk assessments to identify the likelihood of staff contracting CoVID-19 whilst at work and appropriate measures to control that risk.

Some French businesses have provided personal protection equipment to their staff, such as alcohol wipes and hand sanitizers, with additional measures for staff at higher risk of exposure to CoVID-19, for example, those in contact with medical patients or visitors from high-risk regions.

Employers should inform employees and if relevant the social and economic committee (the employee representative body) about all social distancing and infection control measures they are taking and the extent to which they require their staff to adhere to these measures (such as personal hygiene, social distancing etc).

Employers may also consider implementing measures to screen visitors to their premises, for example requiring them to certify that they have not recently visited a high risk area.

If an employer fails to implement appropriate measures then it will potentially leave itself exposed to employees asserting that they have grounds for refusing to attend work, on the basis of their withdrawal right (“droit de retrait”), meaning that they would refuse to work on the basis it would place them in “serious and imminent danger”.

Employers should consider implementing protocols to deal with employees under mandatory quarantine; who have self-quarantined; who have travelled to high risk destinations; who propose going on holiday to such destinations; or who appear to be at risk or are ill, potentially with CoVID-19.

Employers may wish to assemble a project team with members specialising in employee relations; insurance; travel and events; communications and occupational health, to work together on developing appropriate protocols.

Protocols will help to ensure consistent and reasonable treatment, thereby reducing the risk of constructive dismissal or discrimination claims.

In summary, employers should consider, and where appropriate implement, appropriate measures; explain those measures to their employees in collaboration with the employee representative body; and explain the steps they are taking to monitor the situation.

2. Business travel – should travel be restricted?

Employers may also consider implementing policies to minimise the risk of employees catching CoVID-19 in the workplace, for example health screening questionnaires for staff members returning from abroad and delaying or cancelling non-essential business travel and meetings.

Whilst the government currently advises against travel to China, Iran, South Korea, Singapore and parts of Italy (Lombardy and Veneto), it is not currently advising against travel to any other country/territory as a result of CoVID-19 risks. The government has published a list of countries affected by the outbreak (see CoVID-19 - specified countries and areas).

As the outbreak is spreading, employers should assess the need for staff to travel abroad; their right to require staff to travel or work in specific locations; and whether additional measures are necessary to protect staff travelling on business.

These measures may include contingency planning for the possibility of staff being quarantined or falling ill when travelling abroad. Employers should review their current travel and medical health insurance arrangements and whether they remain in force and are adequate.

In considering whether staff should still travel, employers should consider the purpose of the travel and whether there is an alternative; the latest government and international guidance; guidance from their occupational health advisor; and available measures to mitigate risk.

3. Flexible working - can an employer require staff to work flexibly?

Employers are likely to need staff to work flexibly, including asking staff to work from different locations, to work from home or to perform different duties.

There may be situations where employees are in quarantine - working from home (“télétravail”) (permitted provided the employee’s duties permit) rather than the employee being on sick leave. In this scenario the employer must provide the tools necessary for the employee to work from home and specify the conditions under which home working can be undertaken. The French government has confirmed that home working can be used in this scenario, without the need to sign an amendment to the employee’s employment contract, (as would usually be required) due to the ongoing situation with CoVID-19. (see L. 1222-11 of the French Labor code).

The employee is not able to refuse a request for homeworking provided the employer is able to justify its decision for homeworking on objective grounds (i.e. the continuing development of the number of cases of CoVID-19).

Employers are also recommended to be flexible and accommodate changed working hours to avoid, if possible, employees having to travel on public transport at the busiest times.

4. Staff who are unwilling to attend work?

Staff who are able but unwilling to attend work because they are concerned about contracting CoVID-19 may try to exercise their right of withdrawal (“droit de retrait”).

Under Articles L. 4131-1 et seq. of the Labour Code, an employee may withdraw from a work situation in which they have reasonable grounds to believe presents a serious and imminent danger to their life or health. The employee must alert the employer of this situation. This is an individual and subjective right and the assessment of what constitutes the workplace presenting a serious and imminent danger needs to be assessed on a case by case basis. However, a "serious" danger is one that is likely to result in an accident or illness leading to death or appears likely to result in prolonged permanent or temporary incapacity, and an "imminent" danger is one that is likely to occur suddenly within a short period of time.

In a crisis situation, the possibilities for exercising the right of withdrawal are strictly limited and provided the employer has taken the necessary preventive and protective measures, in accordance with the government's recommendations it is unlikely that right of withdrawal could be lawfully utilised (https://www.gouvernement.fr/info-coronavirus).

It is worth noting that no financial sanctions or deductions from wages may be applied as a result of the legitimate exercise of the right of withdrawal and the employer cannot ask the employee to return to work in a work situation where there is still a serious and imminent danger. However, if the exercise of this right by the employee is manifestly abusive, a deduction from wages for non-performance of the contract of employment can be implemented.

Employers should ensure that they have undertaken a risk assessment and have taken steps to mitigate any workplace risks which might cause employees concern. They should also ensure that they have dealt with requests to remain away from work in a proportionate, reasonable and consistent manner.

5. If staff cannot attend work, are they entitled to pay?

This will depend on the reason for non-attendance.

Some employees may be willing but unable to work because they are caring for dependants, schools are shut or their transport is disrupted.

In this scenario, the Employee should contact his employer to determine whether an arrangement for working from home can be organized.

If the parent needs to care for a child below 16 years old due to school closures, the employee can benefit from compensatory sick pay if an arrangement for home working allowing them to stay at home to look after the child cannot be agreed. In this scenario the employer must declare the employee's work stoppage (due to the non-availability of a home working arrangement) via the employer page of the ameli.fr website. Compensatory sick pay is then triggered from this declaration. The employee will receive the daily compensatory sick pay allowance and, if applicable, the salary supplement from their employer from the first day of the stoppage (without application of the normal waiting period).

Staff who cannot work because they have been infected with CoVID-19 will normally be entitled to sick pay in the usual way.

The government issued a decree on January 31, 2020 which is in force until March 31, 2020, which has loosened the conditions for receiving Social Security benefits. The changes meant that individuals who have been exposed to CoVID-19 and therefore are at risk of infection and quarantined are also entitled to receive Social Security benefits. Employees who cannot work during the quarantine period will be compensated under the normal arrangements and may receive additional compensation from their employer or the healthcare insurance system for a maximum period of 20 days. However for this to apply the employee must have been identified by the Regional Health Agency as an individual requiring quarantine. The employer cannot ask the employee to come to work during the quarantine period or to make up for the days of absence at another time.

If the employee develops the illness during the quarantine period, the normal sick leave rules will apply. During the sick leave period, the employment contract is suspended and the employee is compensated by the Social Security system, the employer or healthcare insurance. It is not permissible for employees who have contracted CoVID-19 to work from home (“télétravail”).

6. What is the role of the social and economic committee (SEC) (employee representative body) and when should an employer inform/consult with it?

One of the objectives of the SEC is to promote health, safety and improved working conditions in the workplace.

Further, in employers with at least 50 employees, the SEC shall be informed and consulted on matters concerning the organisation, management and general running of the company, in particular on working hours or conditions of employment, work and vocational training, and on any major changes in health and safety or working conditions.

This is the case for:

  • major changes in the organisation of work;
  • any slow-downs or reduced working capacity;
  • derogations from the rules on working hours and rest periods.

For these matters, an opinion from the SEC must be obtained before the employer proceeds.

Moreover the SEC may be convened at the request of two of its members on matters relating to health, safety or working conditions.

Finally, if a member of the SEC believes that there is a cause of serious and imminent danger, in particular when an employee has exercised their right of withdrawal, the SEC representative must immediately notify the employer and record that notification in writing in a register provided for that purpose. The employer must then lead an investigation with the SEC representative who raised the alert and take the necessary measures to remedy the situation.

7. Reporting - Can an employer require staff to report suspected cases of the CoVID-19 relating to themselves or those they have come into contact with?

Employers can request that employees report if they are infected or have been exposed to CoVID-19. Employers can also ask employees if they have recently travelled to China or other listed countries. However they cannot require an employee to take a CoVID-19 test.

Under data protection law, such information about an individual’s health counts as a ‘special category’ personal data which may only be processed in limited circumstances. The processing of this information (for instance what and how it will be used and with whom it will be shared – as strictly necessary) should be made clear and employers should ensure that the processing is necessary and appropriate for the stated purpose and is carried out in a proportionate manner. Maintaining the security of the personal data will be fundamental.

Employers must be careful to avoid unlawful discrimination which might arise if (for example) employees with a particular nationality or ethnicity are singled out for checks.

8. If there is a decreased requirement for staff due to the CoVID-19 outbreak, can employers require employees to take annual leave during a shutdown period or reduce the business activity?

Employers can suggest the dates on which an employee takes annual leave, provided appropriate notice is given. However they cannot force an employee to take annual leave at a particular time without gaining the employee's consent.

In France employers are able to utilise the partial activity scheme under which they can request in exceptional circumstances (Article R. 5122-1 of the Labour Code) a temporary closure of the workplace or a reduction in the normal working hours of the business.

Under this scheme a specific procedure needs to be followed and if the request is successful, the employees to whom the partial activity scheme relates, will remain bound by their employment contract, but will no longer be entitled to all or part of their salary. In these situations a specific compensatory allowance is paid by the State to the employees. This allowance must be at least 70% of the gross previous remuneration and may be topped up by the employer. To accompany the payment of the allowance, the employer also benefits from a lump-sum allowance co-financed by the State and the Unemployment Insurance (Unedic).

9. What other contingency planning steps should employers be taking?

Effective planning is key to ensuring business continuity and the protection of employees. In addition to the above, employers should:

  • Create a senior team to co-ordinate monitoring government guidance, implementing measures and providing information and support to staff
  • Devise an appropriate communications plan to keep staff fully informed, even when they are absent from work, together with provision of emergency contact details
  • Ask employees to report if they are ill or at particular risk of infection; and inform them of the steps they should then take to receive appropriate medical attention
  • Train managers on the employer’s measures and provide them with information to identify and respond to risks, as well as providing support and training to staff on key facts and risks
  • Consider alternatives to travel such as using videoconferencing or webinars
  • Identify and track employees who are abroad and consider appropriate measures to support them
  • Identify key roles in their business which are essential for business continuity and the measures necessary to ensure their resilience (for example remote working or split key teams into different locations)
  • Consider any measures necessary to sustain widespread home working
  • Review relevant policies (for example home working, sickness, emergency leave) and agree changes to staff contracts to deliver flexibility
  • Consider how temporary shutdowns of premises might be managed
  • Review insurance coverage
  • Consider requests to work flexibly and for self-isolation, quarantine and sickness will be dealt with and ensure that it is reasonable, fair and applied consistently.

10. Where can guidance from the French government and international bodies be found and monitored?

The French government’s website provides the latest official information on CoVID-19 in France: https://www.gouvernement.fr/info-coronavirus

A free information phone number has been implemented: 0 800 130 000.

The World Health Organization’s information on the CoVID-19 may be found here: https://www.who.int/emergencies/diseases/novel-coronavirus-2019

Other useful links for employers are as follows:

11. Is there any obligation on a private employer to report any cases or suspect cases of COVID-19 to the relevant local authorities?

There is currently no obligation for employers to report cases. Employers should call 15 (SAMU) if they want to discuss a concern that an individual may be affected. Or they could discuss the case with the occupational physician (company doctor). Please note that employers cannot require an employee to take a CoVID-19 test.