COVID-19 | The health and political situation in France: Practical Legal Questions

Paris, March 16, 2020 – The Coronavirus and the disease it causes, COVID-19, have important legal implications for employers and their workers. The health and political situation in France is quickly evolving, on a daily basis. Below you will find guidelines on the situation as well as answers to some of the more common questions that employees are faced with.

Situation:

On March 14, the government ordered the closure of all non-essential businesses that are open to the public. This concerns the vast majority of retail stores. All schools are closed for at least two weeks starting on March 16, 2020. Consequently, many employees will have to stay home to take care of their young children.

Furthermore, the Ministry of Labour has published the following instructions:

• Telework becomes the mandatory rule for all positions that allow it.
• Social-distancing rules for jobs not eligible for telework must be respected.
• Companies are invited to rethink their organizations:
  • Limit meetings to what is strictly necessary and respect the rules of distancing.
  • Non-essential travel should be cancelled or postponed.
  • Work organisation should be adapted to the maximum extent possible, for example team rotation.
• Company restaurants can remain open but must be arranged so that there is a distance of one meter between the seats at the table.

All companies affected by the closure order dated 14 March 2020 are eligible for partial activity (see Question 1 below) without delay. This system can be activated on www.activitepartielle.emploi.gouv.fr/

If teleworking is not possible and the employee does not have childcare facilities for children under 16 years of age, he or she can request a paid leave of absence, without waiting period, for the time that the childcare facility is closed. The employer cannot refuse this leave.

Practical legal questions

Q1: Can the employer impose reduced working time on its employees?

A: Yes. This is known as “Activité Partielle” and its reinforcement is part of the significant measures taken by the French government in order to protect companies from the economic fallout of the pandemic, due to a drop in activity.

It avoids the need to terminate the employment contract.

The employee cannot refuse being put on Partial Activity

The company must pay employees Partial Activity compensation corresponding to 70% of the gross hourly wage calculated on the number of hours they do not work.

There is therefore a financial loss for the employee, but also in theory for the company because the state only partially compensates these allowances, based on the minimum hourly wage.

However, the President of France announced an “exceptional and massive” mechanism aimed at “protecting employees and companies”, in particular through the introduction of short-time working.

“The State will take charge of compensating employees forced to stay at home, whatever the cost.” More information is expected very soon.

Q2: Can the company require an employee to take paid holidays in the next few weeks?

A: The employer can ask the employee to use their vacation days, but the employees can refuse.

Legally, an employer can’t impose that leave be taken on such short notice. The Labour Code provides for a notice period of two months before enacting such measures.

The employer is however allowed to rearrange paid leave dates (say, Easter vacation days) that have already been set, subject to a minimum notice period of one month.

It should be noted that it may be in the employee’s interest to take leave rather than to find himself in the “Partial Activity” scenario, which is less well paid.

Q3: Can employees refuse to work (activate their “Withdrawal Right”) on the basis of safety reasons?

A: It all depends on each individual’s situation. According to the Labour Code, an employee has the right to withdraw from his or her position in the event of “serious and imminent danger to life or health”. The law also specifies that “no sanction, no deduction of wages may be taken against a worker” who has exercised his right to withdraw on the basis of “reasonable grounds”. This assessment is subtle and is left up to the courts in the case of litigation.

If an employer considers that the reason for the withdrawal is not legitimate, he may suspend payment of wages. The employee could then take the matter to court. It is a case-by-case assessment, depending on personal situations.

For example, an elderly employee, working in contact with the public and suffering from respiratory problems, should more easily be able to have his or her right of withdrawal related to the coronavirus recognized than a young, healthy employee who is not in contact with the public.

Employers who fail to take adequate precautions to safeguard the health and safety of employees could see their workforce legitimately exercise its right of withdrawal.

Q4: Are employees confined at home and unable to work from home entitled to their pay?

If, for health and safety reasons, the employer tells the employee to stay at home, the employer must maintain the entire salary. Otherwise, he exposes himself to claims for damages before the industrial tribunal.

If an employee is confined by a decision of the State, for example in case of confinement of a city, it may be considered a case of force majeure which suspends the employment contract. In this case, wages are not due. However, this cannot be invoked lightly, as French law has strict criteria for force majeure to be recognized. In particular, it must be demonstrated that there was nothing the employer could do.

A company whose employees work mainly on computers could, for example, set up teleworking to continue the activity in the event of confinement: in this case, irresistibility would not come into play.

The French State has announced significant economic measures to help alleviate the consequences of such a situation where confined employees can’t work.

Finally, to be clear, if the employee is confined following a sick leave issued by a doctor, the classic compensation process naturally applies.

We would like to thank Olivier Kress Kress@flichy.com partner 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.