Every day, coronavirus disease “nCoV-2019” outbreak is getting bigger, the national territory as a whole is now affected, with several so-called “cluster” areas.
How to respect its obligations without giving in to panic, to adapt its activity and organization, to limit the negative consequences for the company, to deal with suspected or even proven cases among its staff, what would be the impact of the transition to “stage 3” presented as imminent, the questions that employers must answer on a daily basis are numerous and the answers are constantly changing.
The employer has a safety obligation towards the employees and must take all measures to ensure their safety and protect their physical and mental health.
Article L. 4121-1 of the Labor Code: « The employer shall take the necessary measures to ensure the safety and protect the physical and mental health of workers.
These measures include:
The employer shall ensure that these measures are adapted to take into account changing circumstances and aim at improving existing situations. »
The employer can be held liable in the event of a suspected or realized risk, unless he is able to demonstrate that the necessary preventive measures have been taken to avoid it.
For their part, employees must comply with their employer’s guidelines and respect the health requirements given to them.
Article L. 4122-1 of the Labor Code: « In accordance with the instructions given to him/her by the employer, it is the duty of each employee to take care, in accordance with his/her training and according to his/her possibilities, of his/her own health and safety and that of the other employees concerned by his/her acts or omissions at work. »
Even in absence of any suspicious cases in the workforce, it is recommended to issue a communication to all employees detailing in particular:
Whether it is the situation of employees returning from high-risk areas, residing in or returning from an area of active circulation of the virus in France, that of employees with children placed in a quarantine or whose school is closed, or that of employees who may have been in contact with infected persons (contact cases whether or not at high risk), there are many individual situations which will need to be dealt with.
To this end, it is advisable to appoint one (or several) point(s) of contact within the company, for both the employees and the authorities.
In addition, the point of contact may be responsible for monitoring / assessing the situation in the company, by identifying :
In order to ensure this follow-up, it could be envisaged to distribute a survey to each of the employees. This survey would allow making the employees more responsible towards the community as well as demonstrating that the employer has fulfilled its safety duties.
When contacts are long and close, employers must adopt specific measures that complement the protective measures recommended by the public health authorities (greeting without shaking hands, avoiding hugging, washing hands very regularly, coughing or sneezing into the elbow, using single-use tissues) such as, for example: the installation of a courtesy zone of at least one metre, regular cleaning of surfaces with an appropriate product, the supply of hydroalcoholic gel and single-use tissues in sufficient quantities, etc.
In addition to cases of information and/or consultation of representative bodies on given subjects (such as updating the risk evaluation document, implementation of the partial activity, etc.), it seems advisable to regularly inform employee representatives of the situation in the company, of all the measures implemented and their evolution.
In addition, the Social and Economic Committee (“CSE”) may be convened at the reasoned request of two of its members on matters relating to health, safety or working conditions.
The Labor Ministry considers that the updating of the single risk evaluation document provided for in Article R. 4121-2 of the Labor Code is required in view of the current epidemic due to the COVID-19 virus and that it must provide for adequate prevention and protection measures to reduce the risks of contagion in the workplace or during work as much as possible.
This updating requires the intervention of the staff representative bodies (CSE) and the occupational health service.
In the event that external companies operate on the workplace, it will also be necessary to update the applicable prevention plans in accordance with the provisions of Article R. 4513-4 of the French Labor Code.
If teleworking is not possible, make sure that the employees concerned:
In case of suspicions, with quarantine / isolation, or even proven cases within the company, the first reflex of the employer should be to alert the occupational doctor and the regional health agency on which it depends.
The employer should also ask the employees concerned to list all the people with whom he/she has been in contact both within the company and with the company’s service providers, customers, etc., and determine the communication and actions to be implemented with regard to these people in relation to the health authorities.
In the case of a quarantine placement, it will be necessary to study with the employee the possible options (mainly teleworking or not).
With regard to workplace areas, in the event of proven contamination, the Government recommends the following measures, as the coronavirus can probably survive for several hours on dry surfaces:
If an employee refuses to comply with an isolation placement recommended by the regional labor authority or teleworking, for instance, it will be possible to implement a disciplinary procedure against him/her and, if necessary, a temporary disciplinary lay-off.
Si un salarié refuse de respecter un placement à l’isolement préconisé par l’ARS ou le télétravail par exemple, il sera possible de mettre en œuvre une procédure disciplinaire à son égard avec, le cas échéant, une mise à pied à titre conservatoire.
TO DEAL WITH A DECREASE IN ACTIVITY: POSTPONING THE PAYMENT OF CONTRIBUTIONS
If an employee refuses to comply with an isolation placement recommended by the ARS or teleworking, for example, it will be possible to implement disciplinary proceedings against him or her, including, if necessary, a protective layoff.
The government announced that companies could request the deferral of their social security and tax charges as of the beginning of March.
The URSSAF specifies on its website that this request can be made either online from each company’s space by sending a message via the heading “A declarative formality”> “Declare an exceptional situation” or by telephone at 3957.
For its part, the Treasury refers to the following email address: covid. firstname.lastname@example.org
Finally, on March 12, 2020, Bruno Le Maire declared “We are going to propose this postponement to them. It is not up to them to ask for it, it is the social and fiscal administration that will propose to companies the deferral of their social charges and tax charges, he said. If at the end of the day companies can’t pay, we’ll give them tax breaks. »
TO DEAL WITH A DECREASE IN ACTIVITY: THE PARTIAL ACTIVITY SYSTEM
The Labor Ministry has confirmed the possibility of using the partial activity system in the context of a drop in activity due to the Covid-19 epidemic (Questions and Answers for companies and employees of the Labor Ministry updated on March 9, 2020).
This system aims at allowing an employer to reduce working hours temporarily, or even to suspend the activity of employees, when the company is faced with economic difficulties compelling it to temporarily reduce its activity due to exceptional circumstances or economic conjecture (Article R.5122-1 of the Labor Code).
The implementation of this system leads to a reduction in the working hours of certain employees below the legal or conventional weekly working hours required :
Requests shall be examined within 15 days of the date of receipt, and failure to take a decision within that period shall be deemed to constitute implicit approval of the request. The CSE must be informed of the administration’s decision (Article R.5122-4 of the Labor Code).
Requests must be submitted on the dedicated portal : https://activitepartielle.emploi.gouv.fr/aparts/ before the actual placement of employees in partial activity.
However, if it is not possible to anticipate applications for partial activity, it is foreseen that employers may submit their application for partial activity within a reasonable period of time after the start of the period applied for.
For all non-working hours up to the legal weekly limit of 35 hours, the employee benefits from an indemnity paid by the employer, corresponding to a percentage of his/her gross remuneration (70% of the gross hourly remuneration).
To supplement the payment of this indemnity, the employer shall receive, for each hour off work, an allowance jointly financed by the State and the body managing the unemployment insurance system (Unédic) at a rate of:
In its questions/answers for enterprises and employees updated on 9 March 2020, the Labor Ministry has detailed the provisions of the Labor Code allowing for derogations from the maximum working hours and rest periods as follows :
These measures may be applied in emergency situations for limited periods of time after informing the labor authority.
Even if the agreement of the employees is still to be favored, teleworking can be implemented unilaterally when the layout of the workplace is made necessary to allow the continuity of the company’s activity and to guarantee the protection of the employees.
Article L. 1222-11 of the Labor Code refers to the risk of epidemic as a possible justification for teleworking without the employee’s consent.
The implementation of teleworking in this framework does not require any particular formalism. However, the CSE must be consulted in the event of a major change in the organization of work (Article L. 2312-8 of the Labor Code).
More and more companies are requiring their service providers, suppliers, customers, etc. able to visit their sites to provide certificates of non-contamination for their employees and/or to transmit information on employees suspected of being contaminated and/or contaminated employees.
This is medical data and therefore particularly sensitive.
On the basis of a reminder of the applicable rules issued by the CNIL (https://www.cnil.fr/fr/coronavirus-covid-19-les-rappels-de-la-cnil-sur-la-collecte-de-donnees-personnelles), the communication of personal data on employees to third parties does not seem possible or even desirable.
Should we buy masks?
Apart from the supply difficulties, this does not seem necessary as masks are only recommended for people who are ill and therefore no longer present in the company.
Can we monitor the temperature of employees?
This is an extremely intrusive measure that can only be justified by very specific circumstances (employees in prolonged and close contact with fragile people, for example) and cannot be systematized for all employees given the current situation.
Should teleworking be systematized?
At this stage, this would be a preventive measure. This does not seem necessary, but it may make it possible, in particular, to test the IT infrastructure and the way in which the teams operate in this configuration in order to make the necessary adjustments if and when teleworking is required. Some companies use it on a more or less large scale and encourage their employees to take their computer equipment with them each evening to be able to telework if necessary.
Should we cancel meetings, seminars?
In the present circumstances, a general ban on any physical meeting or seminar does not seem necessary and a case-by-case analysis should be favored, making sure that recommended gestures are respected for those that will be maintained and, to the extent possible, arranging the areas in such a way as to leave a distance of at least one meter between each participant.
What about employees’ right of withdrawal?
Under Articles L. 4131-1 and following of the Labor Code, an employee may withdraw from a work situation in which there are reasonable grounds for believing that it presents a serious and imminent danger to his or her life or health. The employee must alert the employer of this situation. This is an individual and subjective right.
The government’s position is that unless employers take no action, the exercise of the right to opt-out by employees in the current context would not be justified. However, this is a matter for the discretion of the courts.
Our employment law team is at your disposal for any questions you may have regarding the above.