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Flash Partial Activity The Administration’s clarifications

Eva Kopelman , Laetitia Ternisien

As part of the state of health emergency, the Government has adopted a series of exceptional measures to support businesses. Thus, the Government has extended the partial activity scheme to cover 100% of the compensation paid to employees by companies, up to 70% of 4.5 SMIC.

Difficulties, particularly procedural, have arisen regarding the implementation of this mechanism.

The administration has provided some clarification on these issues in its question and answer updated on April 3, 2020, which includes the latest regulatory changes concerning partial activity.

Find this text on the website of the Ministry of Labour:  https://travail-emploi.gouv.fr/IMG/pdf/covid19-document-precisions-activite-partielle.pdf

MULTI-ESTABLISHMENT COMPANIES

Initially, companies with more than one establishment had to apply for partial activity per establishment.

From now on, these companies will be able to compile a single application for partial operation for all their establishments concerned.

The IT platform for submitting applications will be set up in April 2020.

While waiting for this configuration, the data will have to be imported establishment by establishment. However, it should be noted that a single user can already download the data for several establishments, up to a limit of 200 SIRETs per account and 1,000 lines per file.

THE SOCIAL SECURITY SCHEME APPLICABLE TO COMPENSATION PAID IN CONNECTION WITH THE PARTIAL ACTIVITY

Partial activity allowances are exempt from all contributions and social security contributions based on earned income, but remain subject to the CSG (6.2%) and the CRDS (0.5%) after the allowance for professional expenses (1.75%).

For employees in full partial employment, the withholding tax on social security contributions may not have the effect of bringing the net partial employment allowance below the gross minimum wage. Thus, employees receiving a monthly allowance equal to the gross SMIC (€10.15 x (52×35)/12) will be exempt from social security contributions. For allowances above this amount, social security deductions will be reduced, if necessary, to guarantee the gross SMIC. The deduction must be made in the following order: Deductible CSG, non-deductible CSG, then CRDS.

For employees whose working hours have been reduced, the cumulative amount of net pay and the allowance may not have the effect of bringing the amount received below the gross minimum wage.

If the employer pays an additional part in excess of 70% of the gross remuneration, this supplement follows the same social regime as the partial activity allowance (i.e. exemption from all social security contributions and levies with the exception of the CSG and the CRDS).

However, the sums paid by the employer for compensation for non-indemnifiable unemployed hours under the partial activity allowance scheme (i.e. hours in excess of 35 hours) are subject to all social contributions and social security contributions in the same way as remuneration.

CONSULTATION OF THE CSE IN THE EVENT OF RECOURSE TO PARTIAL ACTIVITY

The provisions relating to the partial activity refer to the consultation of the CSE. The question of consultation in undertakings employing between 11 and 50 employees has therefore arisen.

In this respect, the administration has specified that consultation of the ESC only concerns undertakings with at least 50 employees. However, it would seem desirable to inform the CSE

As regards companies with at least 50 employees, the administration did not wish to block applications for partial activity from companies that have still not set up an ESC, despite the legal obligation to do so. Thus, requests for partial activity may exceptionally be authorised in the absence of an ESC.

These companies will nevertheless have to commit themselves to organise professional elections as soon as the period of suspension of the electoral process is lifted.

THE ARTICULATION BETWEEN PARTIAL ACTIVITY AND DAILY SICKNESS BENEFITS

Several cases must be distinguished:

  1. If the employee has previously taken time off work due to illness and the employees of the company are subsequently placed in partial activity

The employee remains on compensated sick leave until the end of the prescribed leave.

The employer’s supplement, paid in addition to the daily social security allowance, is adjusted to maintain remuneration at a level equivalent to the amount of compensation due for the partial activity, i.e. at least 70% of the gross salary.

Indeed, the employer’s supplement cannot lead to the payment of a higher amount to the employee than he would receive if he were not on leave. This adjustment of the employer’s supplement may be adjusted after the fact.

The employer’s supplement remains subject to the same social security contributions and taxes: it is therefore subject to contributions and social security contributions under ordinary law as if it were remuneration.

At the end of the work stoppage, the employee switches to the partial activity.

 

  1. If the employee first benefits from an exceptional work stoppage put in place as part of the management of the epidemic for isolation or childcare and the company places its employees, after this stoppage, in partial activity

In this case, a distinction must be made between two situations: that in which the activity of the enterprise is totally interrupted and that in which the activity of the enterprise is reduced.

 

a) Case of a company placing its employees in partial activity due to a total closure or the closure of part of the establishment

Since the justification for the exceptional judgments is to compensate the employee who cannot go to his workplace either as a protective measure or because he is forced to keep his child, these judgments no longer apply when the employee’s activity is interrupted under the partial activity scheme.

Under these conditions, the placement of employees in partial activity, when the establishment or part of the establishment to which the employee is attached closes, must lead to the interruption of the employee’s sick leave: the employer must then notify the health insurance of the early end of the sick leave according to the same procedures as an early resumption of activity in the event of ordinary law sick leave.

However, in view of the exceptional circumstances, if the exceptional work stoppage is in progress at the time the employees are placed in partial activity due to the closure of all or part of the establishment, the employer may wait until the end of the stoppage in progress to place the employee in partial activity.

On the other hand, no extension or renewal of the stoppage may be granted once the partial employment has begun. Employers are therefore obliged not to request the renewal of their employees’ childcare leave.

In the case of work stoppages for vulnerable persons who could validly declare themselves on the health insurance teleservice, which are automatically extended by the health insurance for the duration of the confinement, the employer is obliged to put an end to them, the employer must then notify the health insurance of the early end of the stoppage according to the same procedures as an early resumption of activity in the event of ordinary law sick leave.

 

b) Case of an enterprise that places its employees in partial employment due to a reduction in activity

It is not possible to cumulate a partial activity allowance and social security daily allowances over the same working period.

This is why when the partial activity takes the form of a reduction in the number of hours worked, it is not possible to cumulate this partial activity with an exceptional work stoppage for childcare or for a vulnerable person.

The employer will therefore not be able to place his employee in partial employment for a reduction in the number of hours worked if a work stoppage is in progress.

 

3. If the employee is first placed in partial employment and then falls ill

An employee placed in partial employment retains the right to sick leave (except for childcare or vulnerable persons). In this case, the benefit of the partial employment scheme is interrupted until the end of the prescribed period of sick leave (the employee receives daily allowances without a waiting period).

In this case, the employer pays the employee an employer’s supplement to the daily social security benefits which is adjusted to maintain remuneration at a level equivalent to the amount of compensation due for the partial activity, i.e. at least 70% of the gross salary, since the employer’s supplement cannot lead to the employee being paid a higher amount than that which he would receive if he were not on leave.

This employer’s supplement is subject to contributions and social security contributions under ordinary law as if it were remuneration.

EQUIVALENCE HOURS

Equivalence hours are taken into account in the counting of time off for the calculation of the partial activity allowance and partial activity allowance. Equivalent time only applies to certain employees, in positions with periods of inaction and in certain industries.

SANCTIONS IN THE EVENT OF FRAUD IN PARTIAL ACTIVITY

The Minister of Labour, Muriel Pénicaud, indicated that a posteriori checks would be carried out to verify compliance with the provisions governing the partial activity.

In a press release dated 30 March 2020, the Ministry of Labour specified the penalties for companies that do not comply with these rules.The partial activation of employees is incompatible with telework.

The partial activation of employees is incompatible with telework. Therefore, the fact that an employer asks a partially active employee to telework constitutes fraud and is considered illegal work.

Indeed, it is forbidden for companies to ask employees to work on their days/hours off. The employer must ensure that the employee respects his or her working hours.

Failing that, the cumulative penalties incurred by the undertaking shall be as follows:

  • full repayment of the sums received for the partial activity;
  • prohibition to benefit, for a maximum period of 5 years, from public aid for employment or vocational training;
  • 2 years’ imprisonment and a fine of 30,000 euros (Article 441-6 of the Criminal Code).

The Ministry of Labour invites employees and staff representatives to report any failure to comply with these rules to the DIRECCTE.

It is strongly recommended that caution be exercised when using partial activity as the penalties are particularly severe. It is strongly recommended that caution be exercised when using partial activity as the penalties are particularly severe. As the partial activity system is costly for the State, we must expect numerous controls, which have already begun to be carried out in some companies.

The firm’s employment law team is at your disposal to discuss or assist you on all these subjects.