Tag Archive for: LABOUR LAW

Employee safety: the employer facing up to its responsibility – Éditions Législatives, 11 May 2020

While some companies are reopening their premises, employers are worried. Will the measures planned to limit the risks of contamination be sufficient? And will they enable them to protect themselves from litigation in the event of contamination of an employee? The legal risks are real, even if they remain difficult to identify today.

While some companies are reopening their premises, employers are worried. Will the measures planned to limit the risks of contamination be sufficient? And will they enable them to protect themselves from litigation in the event of contamination of an employee? The legal risks are real, even if they remain difficult to identify today.

[Interview] – Eva Kopelman : “During the lockdown, social dialogue must continue”, Liaisons Sociales, 26 March 2020

Eva Kopelman, a labour law counsel at Jeantet, recommends that companies maintain as much social dialogue as possible during the period of lockdown related to the coronavirus pandemic.

Eva Kopelman, a labour law counsel at Jeantet, recommends that companies maintain as much social dialogue as possible during the period of lockdown related to the coronavirus pandemic.

[Covid-19] Can the employer be held criminally responsible?

The law extending the state of public health emergency of 11 May introduced a new article in the public health code requiring the judge to assess possible criminal liability in concreto in the event of Covid-19 contamination. What are the consequences?

The law extending the state of public health emergency of 11 May introduced a new article in the public health code requiring the judge to assess possible criminal liability in concreto in the event of Covid-19 contamination. What are the consequences?

Security obligation: with covid-19, are employers right to worry about their liability to judges? – Éditions Législatives, 12 mai 2020

Employers are concerned that they may be liable for contamination in the workplace. Will compliance with the ministry’s fact sheets be sufficient to prove that they have taken all necessary steps to avoid the risk, as required by their safety obligation? Both employers’ lawyers and trade unionists advise that all measures taken should be documented […]

Employers are concerned that they may be liable for contamination in the workplace. Will compliance with the ministry’s fact sheets be sufficient to prove that they have taken all necessary steps to avoid the risk, as required by their safety obligation? Both employers’ lawyers and trade unionists advise that all measures taken should be documented to the maximum extent possible. The point with the Editions Législatives.

Coronavirus: Flash re. Executive Order dated April 22nd, 2020 and the Decree dated April 21st, 2020

During the state of health emergency, the Government has amended the partial activity scheme on several occasions in order to facilitate its use by companies. Today, more than 10 million employees in France are covered by this scheme, i.e. more than one employee out of two in the private sector. Until now, applications for partial […]

During the state of health emergency, the Government has amended the partial activity scheme on several occasions in order to facilitate its use by companies. Today, more than 10 million employees in France are covered by this scheme, i.e. more than one employee out of two in the private sector.

Until now, applications for partial activity were made collectively per establishment or part of establishment. The employer could not target a particular job.

The Executive Order of April 22nd, 2020 allows employers to individualize the implementation of partial activity within their company.

Now, the employer may “place only part of the employees of the company, establishment, service or workshop, including those belonging to the same professional category, in a position of partial activity or apply to these employees a different distribution of hours worked and not worked, when this individualization is necessary to ensure the maintenance or recovery of activity”.

This ordinance also specifies that the additional compensation paid by the employer in respect of partial activity is subject to social security contributions for the part exceeding 3,15 SMIC.

Indeed, structural overtime is now taken into account to determine the number of hours not worked and those compensated under the partial activity.

Finally, the decree n°2020-459 dated April 21st, 2020 modifies the provisions relating to derogatory work leave.

These texts are available on the Legifrance website:

https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000041814597&fastPos=4&fastReqId=1359090916&categorieLien=id&oldAction=rechText

https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000041814492&fastPos=14&fastReqId=1184966229&categorieLien=id&oldAction=rechTexte

Individualization of the partial activity

The Executive Order of April 22nd, 2020 amends the conditions of partial activity by allowing, on the basis of a collective agreement, or in the absence of an agreement, after a favorable opinion from the Social and Economic Committee (“CSE”) or the works council, the partial activity of employees on an individual basis or according to a non-uniform distribution of hours worked or not.

The agreement or the document submitted for the opinion of the CSE or the works council shall determine in particular:

1° The skills identified as necessary for maintaining or taking over the activity of the company, establishment, department or workshop;

2° The objective criteria, related to the positions, functions occupied or professional qualifications and skills, justifying the appointment of employees who are maintained or placed in partial activity or who are subject to a different distribution of hours worked and not worked;

3° The procedure and periodicity, which may not be less than three months, according to which the criteria mentioned in 2° are periodically re-examined in order to take into account changes in the volume and conditions of activity of the company, if necessary, to amending the agreement or document;

4° The specific arrangements for reconciling the professional life and the personal and family life of the employees concerned;

5° The procedures used to inform the employees about the application of the agreement during its duration.

Additional compensation paid by the employer

If the sum of the partial activity allowance and the additional allowance paid by the employer pursuant to a collective agreement or unilateral decision is higher than 3,15 times the hourly minimum wage, the part of the additional allowance paid in excess of this amount will be subject to social security contributions applicable to the income from activity.

In other words, when the partial activity allowance + the additional allowances paid by the employer exceed 3, 15 SMIC, then these additional allowances are subject to the social contributions applicable to the income from activity, but only for the part exceeding 3, 15 SMIC.

This rule applies to periods of activity as of May 1st, 2020. Consequently, additional allowances paid before that date remain exempt regardless of their amount.

Taking overtime into account in the calculation of the partial activity allowance

For employees having a lump sum agreement in hours and for those whose working hours are longer than the legal duration in application of an agreement or collective labor agreement, overtime is now taken into account to determine the number of non-worked hours compensated under partial activity.

Indeed, the working hours stipulated in the contract are taken into account instead of the legal working hours to determine the reduction in working hours pursuant to Article 5122-1 of the Labor Code.

For instance, an employee whose working time is contractually fixed at 37 hours per week with an hourly rate of 15 euros gross and who is in 100% partial activity could previously only claim compensation of : 35 hours x 70% x €15 = €367.5, whereas he/she can now claim 37 hours x 70% x €15 = €388.5.

Extension of the time limits applicable to the procedure for the recognition of accidents at work and occupational diseases

Article 11 of the Executive Order sets out the extension of the time limits applicable to the procedure concerning the recognition of work accidents and occupational diseases, mentioned in Articles L. 411-1, L. 411-2 and L. 461-1 of the Social security code, for the duration of the state of health emergency.

With regard to accidents at work, the time limits are extended by:

  • 24 hours for the declaration of the work accident by the victim,
  • 3 days for the declaration of the accident by the employer to the CPAM,
  • 2 days for the formulation of reservations to the CPAM,
  • 10 days to answer the questionnaire on the circumstances or cause of the accident.

For occupational diseases, the following deadlines are extended by:

  • 15 days for the declaration of the occupational disease by the victim to the CPAM,
  • 2 months for declarations to the CPAM in the case of a revision or addition to the table of occupational diseases,
  • 10 days to answer the questionnaire on the circumstances or cause of the accident,
  • 20 days for the duration of making the file available within the framework of the procedure for the recognition of occupational diseases.

In the event of a relapse or new injuries, an additional period of 5 days is granted to reply to the questionnaire.

Finally, the time limits after which the CPAM decides to make a decision or to initiate additional investigations into the occupational nature of the accident or illness are extended until a date set by decree (and no later than October 1st, 2020).

Derogatory work leave

The decree of April 21st, 2020 extends the conditions for the prescription of derogatory work leave to parents of disabled children who are unable to telework. Thus, the age condition of 16 years is abolished for children with a disability.

In addition, the maximum period of validity of leave for vulnerable persons, initially 20 days, is extended to the duration of the measure of isolation, eviction or home support.

These derogatory work leave may now be established by local doctors.

Other measures

The Executive Order of April 22nd, 2020 provides for the possibility, by decree, to modify, for a temporary period, the time limits for consultations and expertise of the CSE concerning the employer’s decisions aimed at dealing with the economic, financial and social consequences of the spread of the covid-19 epidemic.

Flash re. Executive Order dated April 15th, 2020 and the Decrees dated April 16th,2020

The Government has resized the partial activity system and opened it to new categories of employees. As implied by the Executive Order dated March 27th, 2020, which refers to “employees who are not subject to legal or conventional provisions relating to working time”, senior executive employees (cadres dirigeants) are now officially covered by the partial […]

The Government has resized the partial activity system and opened it to new categories of employees.

As implied by the Executive Order dated March 27th, 2020, which refers to “employees who are not subject to legal or conventional provisions relating to working time”, senior executive employees (cadres dirigeants) are now officially covered by the partial activity scheme since they are expressly referred to in the Executive Order n° 2020-428 dated April 15th, 2020. However, a decree laying down the terms and conditions for calculating their partial activity allowance is still awaited.

The Decree n°2020-435 of April 16th, 2020 specifies the methods for calculating the partial activity indemnity and allowance for employees whose working hours are computed in days. This decree specifies the base salary to be taken into account for this calculation.

Finally, the Government indicated, in a press release published on April 17, that people benefiting from a work leave in the context of the covid-19 crisis (vulnerable persons and employees on leave for childcare) will be placed under the partial activity scheme from May 1st, 2020.

The Executive Order and Decrees are available on the Legifrance website: à

https://www.legifrance.gouv.fr/rechTexte.do?reprise=true&page=1

Provision applicate to employees subject to a fixed-annual working time in days or in hours scheme

The decree of April 16th, 2020 specifies the methods for calculating the partial activity indemnity and allowance for employees whose working time is computed in days or hours per year.

The partial activity indemnity and allowance are determined by taking into account the number of hours or days or half-days not worked by the employee during the period of partial activity.

The conversion into hours must be made as follows:

– a half-day not worked corresponds to 3h30 not worked;

– a day not worked corresponds to 7 hours not worked;

– a week not worked corresponds to 35 hours not worked.

During this period of partial activity, days of paid leave and rest taken, as well as public holidays not worked (which correspond to working days) are converted into hours according to the above methods. The hours resulting from this conversion shall be deducted from the number of hours not worked for which the company requests a partial activity allowance.

Provision applicable to senior executives and sales representatives

The Executive Order n° 2020-428 dated April 15th, 2020 provides an important clarification concerning the opening of the partial activity scheme to senior executives, since it stipulates that they may benefit from the scheme only in the event of a temporary closure of their establishment or a part of the establishment. A decree is expected to specify the methods for calculating this allowance.

For sales representatives (“VRP”), the partial activity indemnity and allowance are calculated as follows:

– the reference monthly salary corresponds to the average gross salary received over the past 12 calendar months (or all the calendar months previously worked if the employee has worked less than 12 months),

– the hourly amount is determined by referring the amount of the monthly reference pay to the legal working time;

– the loss of salary corresponds to the difference between the monthly reference salary and the monthly salary actually received during the same period;

– the number of unworked hours which may be compensated corresponds, within the limit of the legal working time, to the difference in remuneration obtained in relation to the hourly amount.

Clarification on the reference salary used for the calculation of the indemnity and the partial activity allowance

For employees receiving variable salary (or are paid at a non-monthly frequency), the reference salary takes into account the average of the variable salary received during the past 12 calendar months (or over all the months worked if the employee has worked less than 12 calendar months), preceding the first day of partial activity.

Are excluded from the calculation base the sums representing professional expenses and the other element of the remuneration which, although having the character of a salary, are not the counterpart of actual work or are not affected by the reduction or absence of activity and are allocated for the year.

Moreover, when the remuneration includes a fraction of the salary corresponding to the payment of the paid leave allowance, this fraction is deducted for the determination of the basis for the calculation of the partial activity indemnity and allowance, without affecting the payment by the employer of the paid leave.

New: Employees under sick leave will be placed under the partial activity scheme

In a press release published on April 17th, 2020, the Government announced a new compensation package for individuals currently under sick leave in the context of the covid-19 crisis (vulnerable persons and employees on sick leave for childcare).

From May 1st, these employees will be placed under the partial activity scheme. They will therefore be able to receive an indemnity corresponding to 70% of their gross salary, i.e. around 84% of their net salary (or 100% of their salary for employees paid at the SMIC level). This compensation will be paid to the employee at the normal pay period by the company, which will be reimbursed entirely by the State under the same limits and conditions as those provided for under the usual partial activity scheme.

However, until April 30th, these employees will be compensated by their employer, in addition to the daily social security allowances, up to 90% of their salary, regardless of their seniority.

These provisions are applied retroactively since March 12th, 2020.

This announcement is compliant with the provisions of the Decree n° 2020-434 dated April 16th, 2020 (published on April 17th, 2020) which provides for a temporary adjustment of the time limits and terms of payment of the additional indemnity provided for in Article L.1226-1 of the French Labor Code until April 30th, 2020.

The measures laid down in this Decree provide for:

  • Alignment of the waiting periods applicable for the payment of these additional allowances with those applicable for the payment of the usual daily allowances by the social security system, i.e. from the first day of absence. On the other hand, for work leave that began between 12 and 23 March 2020, the additional allowance is paid from the 4th day of absence;
  • The payment of an indemnity equal to 90% of the gross remuneration that the employee would have received if he/she had continued to work, for the period between 12th March and 30th
  • By derogation to Article D.1226-3 of the French Labor Code, the calculation of the compensation does not take into account the periods of compensation paid during the last 12 months.

Cronavirus: Flash re. staff representative bodies Clarifications provided by the Decree dated April 10th, 2020

By Ordinance dated April 1st on emergency measures relating to staff representative bodies (“IRP”), the Government had provided for the possibility for companies to hold meetings with their IRP via videoconference or conference call but also by instant messaging app if the two first means cannot be used. By Decree published on April 10th, 2020, […]

By Ordinance dated April 1st on emergency measures relating to staff representative bodies (“IRP”), the Government had provided for the possibility for companies to hold meetings with their IRP via videoconference or conference call but also by instant messaging app if the two first means cannot be used.

By Decree published on April 10th, 2020, the Government provided clarifications on how to use conference calls and instant messaging.

This Decree is available on the following website: https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000041794077&dateTexte=&categorieLien=id

COMMON PROVISIONS FOR CONFERENCE CALL AND INSTANT MESSAGING

According to the Decree, the technical system implemented by the employer must guarantee the identification of the members, as well as their effective participation by ensuring the continuous and simultaneous retransmission of the sound (for conference calls) and the immediate communication of written messages during the deliberations (for instant messaging).

Therefore, the president must be able to identify all the participants without seeing them. To this end, the president may ask participants to provide their identity at the beginning of the meeting and then establish an order in which they will speak. Thus, participants will have the possibility to speak up after having been invited by the president. In any event, it is advisable to set out the applicable rules for attending the meeting clearly from the beginning and, in particular, ask participants to provide their first and last names before speaking.

The Decree specifies that the use of these means of communication must not prevent to suspend the meetings.

When a secret ballot vote is needed, the voting system must comply with the conditions laid down for videoconferencing by Article D. 2315-1 of the Labor Code, which provides that: “the voting system guarantees that the identity of the participant may not, at any time, be linked to his/her vote. In case of electronic vote, the system used by the company must ensure the confidentiality of the transmitted data as well as the security of the addressing of the authentication means, the issuing, recording and counting of the votes”.

As regards the organization of the vote, the employer must liaise with an external provider in order to set up a voting system (e.g. by telephone for instance).

In addition, the employer shall ensure that the following principles are respected:

  • Deliberations shall be initiated only after checking that all members have access to the relevant technical equipment, meeting the conditions laid down in Article D. 2315-1 ;
  • The vote shall take place simultaneously. To this end, participants shall have the same time limit to vote once the voting operations have been opened, as indicated by the employer.

 

Finally, the employer must inform the staff representative members about the fact that the meetings will be held through conference call or instant messaging under the rules usually applicable for the convocation to the meetings.

SPECIFIC PROVISIONS TO INSTANT MESSAGING

The president informs the staff representative members that the meeting will be held by instant messaging and specifies the date of the meeting as well as the duration of the meeting (starting and ending hours).

The meeting is held in accordance with the following steps:

  1. Deliberations shall be initiated only after verification that all members have access to the relevant technical equipment;
  2. Debates shall be closed by a message from the employer, which may not be delivered before the time limit set for the closure of the deliberations;
  3. The vote shall take place simultaneously. To this end, participants shall have the same time limit to cast their vote once the voting operations have been opened, as indicated by the employer;
  4. At the end of the period set for the expression of votes, the president shall disclose the results to all members.

Flash Partial Activity The Administration’s clarifications

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 […]

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.

Coronavirus: Flash about the Ordinances published on April 2, 2020

On Wednesday 1 April, the Council of Ministers adopted new ordinances to deal with the covid-19 epidemic. These orders issued on April 2, 2020 include emergency measures regarding: staff representative bodies, vocational training, the payment of the exceptional purchasing power bonus, the postponement of the ballot to measure the trade union hearing of employees in […]

On Wednesday 1 April, the Council of Ministers adopted new ordinances to deal with the covid-19 epidemic.

These orders issued on April 2, 2020 include emergency measures regarding:

  • staff representative bodies,
  • vocational training,
  • the payment of the exceptional purchasing power bonus,
  • the postponement of the ballot to measure the trade union hearing of employees in companies with fewer than eleven employees and the extension of the terms of office of industrial tribunal advisors and members of regional inter-professional joint committees,
  • the conditions for occupational health services to carry out their tasks in the context of health emergencies and amending the system of prior applications for partial activity authorisation.

These texts are available on the Légifrance website: https://www.legifrance.gouv.fr/rechTexte.do?reprise=true&page=1

MEASURES RELATING TO STAFF REPRESENTATIVE BODIES

Ordinance No. 2020-389 of 1 April 2020 provides:

  • The immediate suspension of all ongoing electoral processes in companies. All deadlines of the electoral process are also suspended. This suspension will end three months after the end of the state of health emergency.

Where the suspension occurs between the date of the first round and the date of the second round of professional elections, the suspension of the electoral process shall not affect the regularity of the first round.

 

  • Extension of the current terms of office of elected representatives and consequently of the period of protection against dismissal from which they benefit (including employees who are candidates in professional elections).

 

  • The employer is exempted from holding by-elections when the end of the term of office of the members of the staff delegation comes less than six months after the date of the end of the suspension of the electoral process (the period of suspension corresponding to the period between 12 March 2020 and 3 months after the date of cessation of the state of emergency).

 

  • Extending the use of videoconferencing, as a temporary derogation, to hold meetings of the Social and Economic Committees (ESCs) and the Central Social and Economic Committees (CSECs).

The ordinance allows, until the end of the state of health emergency, the organization of all meetings by videoconference, telephone conference or, if it is not possible to use videoconference or telephone conference or when a company agreement provides for it by instant messaging.

The employer must inform the staff representatives before implementing these arrangements for the organisation of meetings.

These specific provisions shall apply to meetings convened during a state of health emergency.

 

  • The CSE shall be informed concomitantly with the implementation by the employer of its decision (i) to impose on its employees the taking of RTT days or assigned days from the time savings account, and/or (ii) to modify working hours or Sunday rest.

The opinion of the CSE must be given within one month of this information

THE MISSIONS OF OCCUPATIONAL HEALTH SERVICES

Ordinance No. 2020-386 of 1 April 2020 provides:

  • The possible postponement of the medical check-ups that were to be carried out as of March 12, 2020 as part of the individual monitoring of employees’ state of health.
  • The possible postponement of health service interventions in or with companies when they are not related to the covid-19 epidemic.
  • The occupational physician may prescribe and, if necessary, renew a work stopping in the event of infection or suspected infection with covid-19 or as a preventive measure.
  • It may also test for covid-19 according to a protocol defined by order of the ministers responsible for health and labour.

 

These measures are applicable until a date to be fixed by decree, and until 31 August 2020 at the latest.

Postponed medical examinations are organised by the occupational health services in accordance with the terms and conditions defined by decree of the Conseil d’Etat and no later than 31 December 2020.

VOCATIONAL TRAINING

Ordinance No. 2020-387 of 1 April 2020 provides:

  • The possible extension by amendment of apprenticeship and professionalization contracts, to take into account the suspension of the reception of apprentices and trainees by apprentice training centres and training organizations.

 

  • The postponement of the deadline for vocational training bodies to obtain quality certification from 1 January 2021 to 1 January 2022.

 

  • The possible postponement, at the employer’s initiative, of the performance of the interviews to assess the professional career of each employee until 31 December 2020.

 

  • The financing of experience validation pathways by skills operators and regional inter-professional joint committees, on a flat-rate basis and within the limit of 3,000 euros per file.
OTHERS MEASURES
  • Extension of the deadline for payment of the exceptional buying power bonus from June 30 to August 31, 2020. For companies implementing a profit-sharing agreement, the ceiling is raised to 2,000 euros. In order to more specifically reward employees who worked during the covid-19 epidemic, a new criterion for modulating the amount of the bonus may also be retained by the collective agreement or unilateral decision of the employer implementing this bonus. It will now be possible to take into account the working conditions linked to the epidemic.

 

  • Postponement of the next ballot to measure the trade union audience of employees in companies with fewer than eleven employees, which could thus be held in the first half of 2021.

 

  • Postponement of the date of the next general renewal of the industrial tribunal advisors and the members of the joint regional inter-professional commissions.

CORONAVIRUS: Flash on the Partial Activity Ordinance of 27 March 2020

In addition to Decree No. 2020-325 of 25 March 2020 facilitating the use of partial activity for all companies, an order relating to partial activity was issued pursuant to Article 11 of the Emergency Law of 23 March 2020 to deal with the covid-19 epidemic. The ordinance n° 2020-346 of 27 March 2020 was published […]

In addition to Decree No. 2020-325 of 25 March 2020 facilitating the use of partial activity for all companies, an order relating to partial activity was issued pursuant to Article 11 of the Emergency Law of 23 March 2020 to deal with the covid-19 epidemic.

The ordinance n° 2020-346 of 27 March 2020 was published in the Official Journal of 28 March 2020 and is available on the Légifrance website:

https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000041762506&dateTexte=&categorieLien=id

NEW HYPOTHESIS OF THE OPENING OF THE PARTIAL ACTIVITY

The profit of the partial activity is now open:

  • Public enterprises that insure themselves against the risk of unemployment. The sums payable by the body administering the unemployment insurance will be reimbursed by the undertakings concerned;
  • Foreign companies with no establishment in France and employing at least one employee carrying out his activity on the national territory;
  • Home workers and childcare assistants (on a temporary and exceptional basis). Individual employers are exempted from requesting prior authorisation from the Direccte. The hourly allowance paid by the employer is equal to 80% of the net remuneration, but at least equal to the conventional (net) minimum wage for home-based employees and, in the case of childcare assistants, to the minimum amount of remuneration laid down in the regulations. Individual employers are fully reimbursed. The calculation of the CSG is simplified;
  • To employees of companies with sole financial autonomy who manage a public service of an industrial and commercial nature of ski lifts or ski slopes (experimental device of the Law named “Mountain”).
INDEMNITY AND PARTIAL ACTIVITY ALLOWANCE
  • Apprentices and employees on professionalization contracts receive compensation equal to the percentage of the minimum interprofessional growth wage applicable to them under the provisions of the Labor Code;
  • Employees undergoing training during the period of partial employment are compensated in the same way as other employees in partial employment (70% instead of 100%) when their training was agreed by the employer after 03/28/2020;
  • Paid equivalence hours are taken into account for employees placed in partial activity in sectors subject to equivalence schemes (employees whose working time includes periods of inactivity). In this case, the allowance is calculated according to a specific method. This applies in particular to bakers, caretakers, boarding school supervisors, entertainers, transporters, etc;
  • Part-time employees in partial employment benefit from the same minimum monthly rate of pay as full-time employees (70% of their salary) without this rate being lower than the hourly minimum wage (or the hourly rate of pay if it is lower than the minimum wage).
OTHERS MEASURES
  • Protected employees: the partial activity is compulsory for the protected employee, without the employer’s agreement, as long as it affects all employees of the enterprise, establishment, department or workshop to which the person concerned is assigned or attached;
  • Employees with a fixed daily allowance and senior executives: the terms and conditions for calculating the indemnity and allowance will be set by decree for employees not subject to the legal and contractual provisions relating to working hours, as well as for those whose working hours are not counted in hours.

A decree will determine the duration of application of these provisions, which may not exceed 31 December 2020.

The Labour Law team is at your disposal to discuss or assist you on all these subjects.

Coronavirus: Do we have to work when there is no such thing as zero risk? – 20 minutes, 29 March 2020

It’s not easy to navigate the flow of information that comes across the coronavirus. Is there a particular question you’re curious about? Every day, “20 Minutes” makes sure to bring you the answer.

It’s not easy to navigate the flow of information that comes across the coronavirus. Is there a particular question you’re curious about? Every day, “20 Minutes” makes sure to bring you the answer.

Congress passed the Families First Coronavirus Response Act

On March 18, 2020, Congress passed the Families First Coronavirus Response Act , a sweeping legislative bill to address the growing concerns surrounding the novel coronavirus, COVID-19. The FFCRA includes measures aimed at expanding paid employee leave in connection with the coronavirus emergency and providing employers with tax credits to cover the cost of those benefits.

On March 18, 2020, Congress passed the Families First Coronavirus Response Act , a sweeping legislative bill to address the growing concerns surrounding the novel coronavirus, COVID-19. The FFCRA includes measures aimed at expanding paid employee leave in connection with the coronavirus emergency and providing employers with tax credits to cover the cost of those benefits.