France: Flichy Grangé Special Report on COVID-19 Outbreak and Obligations for Employers

Coronavirus 2019-nCoV:

Obligations for Employers under French Labour Law

On 30 January 2020, the World Health Organisation (WHO) declared Coronavirus 2019-nCoV to be a public health emergency of international concern.

According to WHO statistics released on 10 February 2020, the Novel Coronavirus (2019-nCoV), first detected in Wuhan, China, has infected more than 40,000 people in 25 countries worldwide and has caused at least 900 deaths, all but two in mainland China. There are 11 confirmed cases of Coronavirus 2019-nCoV in France (and its territories).

Despite a low risk of the disease spreading inside France, according to the French Public Health Agency (SPF) and the European Centre for Disease Prevention and Control (ECDC), the speed with which the virus has spread should embolden employers to take action.

Employers are urged to consider implementing measures to prevent and respond to a host of potential scenarios stemming from, or linked to, the Coronavirus 2019-nCoV epidemic.

Important First Steps for Employers

In order to comply with the safety obligations defined in article L. 4121-1 of the French Labour Code, employers must implement measures for the protection of the physical and mental health of their employees in accordance with the directives on occupational and preventative medicine and obligations to consult with employee representative bodies. The absence of such consultation with the staff representatives is liable to constitute an offense of obstruction (“délit d’entrave”).

By way of illustration, it seems useful to adopt the following measures as soon as possible:

• Refer to the measures provided for in the Business Continuity Plan (“Plan de Continuité d’Activité” or “PCA”) when such a plan exists. The Business Continuity Plan aims to define the measures necessary to allow the company to continue operating in the event of a major crisis, such as an epidemic.
• Organise the repatriation of expatriate employees, seconded employees or employees on business trips in areas affected, or likely to soon be affected, by Coronavirus 2019-nCoV in the absence of specific measures taken by the French Government. If the employee is in the event of a secondment, traveling abroad or posted abroad in execution of a mobility clause, repatriation may be organised as part of the exercise of the employer’s management power, by respecting a sufficient notice period, if necessary. For expatriate employees or those posted abroad for a fixed period provided for by a clause in their employment contract, repatriation will require their consent. In the event of refusal of repatriation, the employer cannot sanction the employee(s).
• Limit, as much as possible, the travel of employees by plane to and from Asia and / or in Asia, in particular through telework when such recourse is possible.
• Propose the establishment of a teleworking period for asymptomatic employees who have recently traveled in areas affected by the epidemic or who have been in contact with infected patients, or even organise an exemption from activity with maintenance of remuneration for a period calculated with regard to the incubation period of Coronavirus 2019-nCoV.
• Inform and educate employees likely to have been exposed or likely will be exposed to Coronavirus 2019-nCoV via posting notice, website, emails, information sessions, etc.
• Provide employees with personal protective equipment (surgical mask, protective mask, spray mask, disinfectant soap, hydro-alcoholic solution, etc.) particularly for employees exposed to risks of infection, namely expatriate employees, seconded employees and employees on business trips in areas affected, or likely to soon be affected, by Coronavirus 2019-nCoV, including employees who have been, or likely will be, in close contact with people from, or likely to come from, areas affected by the epidemic.
• Organise training programmes / exercises for employees likely to be exposed to Coronavirus 2019-nCoV.
• Institute a routine schedule to regularly disinfect the premises and work tools in the event of exposure or risk of exposure to Coronavirus 2019-nCoV.
• Use overtime hours and, under certain conditions, extend the daily and / or weekly working hours, suspend the daily and / or weekly rest periods and derogate from the working at night scheme in order to compensate for the absence of employees who are unable to work.
• If possible, provide psychological / mental health support to employees likely to have been exposed or likely will be exposed to Coronavirus 2019-nCoV.

Issues Employers Should Anticipate

Employers should anticipate encounters with employees who elect to exercise their right of withdrawal (“droit de retrait”). They may also have to contend with the exercising of a right of alert for serious and imminent danger (“droit d’alerte pour danger grave et imminent”) by a member of the social and economic council (“comité social et économique”) or by a member of the health, safety and working conditions committee (“commission santé, sécurité et conditions de travail”). In these situations, employers are recommended to prepare for the commencement of an investigation and, if necessary, to address the potential consequences when the risk is characterised. It is important to remember that the benefit of the employer’s inexcusable fault (“faute inexcusable”) is de jure for the employee(s) who are, or may be, the victim(s) of an occupational disease, when the employee(s) or their representatives previously reported to the employer the risk that materialised.

Employers could also be confronted with demands that they recognise Coronavirus 2019-nCoV as an occupational disease (“maladie professionnelle”) from infected employees. Indeed, a characterised illness not designated in a table of occupational illnesses can also be recognised as of professional origin when it is established that it is essentially and directly caused by the victim’s usual work and that it results in the death of the individual or causes a permanent incapacity at a rate at least equal to 25%, following an opinion from the regional committee for recognition of occupational diseases. In the event of a request for recognition of the professional origin of contaminations by Coronavirus 2019-nCoV, the responsibility falls on the employer to assess whether to challenge such a qualification, together with evaluating the potential consequences which would result from it, having regard to the circumstances of each individual case. With respect to the possible challenge to the professional origin of the contamination, the question would be asked whether the pathology was indeed contracted during the employee’s usual work.

Bear in mind that the employment contract of the employee who suffers from an occupational disease is suspended for the duration of the sick leave(s) caused by the illness. The employer can only terminate the employment contract during periods of suspension of said contract, if the employer justifies either a serious fault on the part of the employee concerned, or is unable to maintain the contract for a reason unrelated to the employee’s illness. At the end of these periods, the employee must return to his/her job or a similar job with at least the equivalent remuneration. The employee should not experience any delay in promotion or advancement within the company as a result of the consequences of an occupational disease.

Finally, if the epidemic were to spread, employers should consider updating their Single Risk Assessment Document (“Document unique d’évaluation des risques” or “DUER”) in light of the work situations observed as well as adopting or updating their Business Continuity Plan (“Plan de Continuité d’Activité” or “PCA”). It should be noted that the failure to prepare and update the Single Risk Assessment Document exposes the employer to a fine of 1,500 Euros (3,000 Euros in the event of a relapse) and to a conviction for inexcusable fault in the event of a risk. Recognition of the employer’s inexcusable fault (“faute inexcusable”) allows the victim or his dependents to obtain an increase in their pension, and additional compensation for various damages suffered and not repaired by the increase.

Reparations in the Event of Isolation, Eviction or Maintenance at Home

Decree n ° 2020-73 dated 31 January 2020, determines the conditions for payment of the sickness benefits issued by the health insurance schemes for people who have been the subject of one or more measures of isolation, eviction or home support and suddenly find themselves unable to work. This decree provides for the possibility of opening the right to daily allowances (“indemnités journalières”) for a period of 20 days without the conditions for opening the right relating to minimum durations of activity, or minimum contributivity, having been met. This new decree also sets aside the waiting periods that would normally apply in order to allow for the payment of daily allowances from the first day of stoppage.

We would like to thank Frédéric-Guillaume Laprévote and Marie Vacassoulis of Flichy Grangé Avocats for contributing to this article.

Flichy Grangé Avocats has a team of employment law specialists readily available to assist you with these and other workplace issues. For more information, please visit www.flichygrange.com.