France: Law to Strengthen Occupational Health Prevention

Authors: Joël Grangé and Florence Aubonnet

The Occupational Health Act (“Loi santé au travail”) was passed in August 2021, but its measures came into force on 31 March 2022, whilst others will become statutory later in 2023 or even in 2024. In addition to changes in occupational health services, and reinforcement of medical check-ups, the law increases the employer’s “risk assessment duty” and enlarges the definition of sexual harassment.

• Increased duties in relation to the Single Occupational Risk Assessment Document (“Document unique d’évaluation des risques professionnels”, so called “DUERP”): This document lists all the occupational risks to which workers are exposed. It must now ensure the collective traceability of these exposures. To this end, it must be kept by the employer and made available to workers and, to a certain extent, to former workers, as well as to other relevant third parties for a period of at least 40 years. Companies with at least 11 employees must now update the DUERP every year, particularly when any major change occurs which may impact health and safety conditions. The Economic and Social Committee (CSE) must now be consulted (rather than solely informed) on the implementation of the DUERP and its updates.
• New definition of sexual harassment. The first change consists in including repeated “sexist” comments or behaviour (in addition to those having a sexual nature). The second one aims at capturing “cyber harassment” committed by a group of persons. Sexual harassment is now also characterised:
  • a) When the same employee is subjected to such comments or behavior by several persons, in a concerted manner or at the instigation of one of them, even though each of these persons has not acted repeatedly;
  • b) When the same employee is subjected to such comments or behavior, successively, by several persons who, even in the absence of concerted action, know that such comments or behavior constitute a repetition

All companies having a “réglement intérieur” shall then update it as this document must contain specific wording in that respect. It is strongly advisable to adopt a policy implementing a reporting procedure to manage any alert.

Law strengthening the protection of whistle-blowers

The new French Whistleblowing law was adopted on 22 March 2022 and will take effect on 1 September 2022. Its scope is wider than the 2019 EU Whistleblowing Directive.

What are the main new features?

• Enlargement of the whistleblower’s definition:
• Firstly, the disclosure of information no longer has to be “disinterested” but only “without direct financial consideration”. The alleged violation no longer needs to be serious or obvious. In the same spirit, they can report events that have occurred but also which are very likely to occur. Finally, the whistleblower need only justify that he or she had personal knowledge of the information when she or him obtained it outside the framework of his or her professional activity.
• Extension of the protection to third parties, including non-profit organisations or trade unions, who have assisted a whistle-blower (“facilitators”) but also persons who have a relationship with a whistle-blower and who could face retaliation (family members, work colleagues) as well as the legal entities owned or with whom the whistle-blower has a professional relationship.
• Whistle-blowers can contact the French “Defender of Rights” government agency (Défenseur des Droits) to obtain official recognition of their whistle-blower status.
• Strengthening of the protection measures:  immunity from civil prosecution in case of disclosure of confidential information when such disclosure was deemed necessary and proportionate to the protection of the interests at stake and immunity from criminal prosecution if they take documents or any other support without permission so long as knowledge of such documents/support was obtained legally
• Modification of the reporting procedures (internal, external or by public disclosure) between which a whistleblower must choose. Apart from a few exceptions, a whistleblower no longer has to go through an internal reporting procedure (direct or indirect hierarchical superior) before considering an external reporting procedure (judicial authority, administrative authority or professional orders) and can therefore choose between these two channels. Public disclosure of information may also take place without prior notification in the event of imminent or obvious danger to the general interest, but also when an external notification would run the risk of reprisals or would not allow the subject of the disclosure to be effectively remedied. These situations are very broad or, at least, can be broadly understood.
• Enlargement of prohibited retaliation measures, which now also includes damage to reputation, changes in working hours and negative performance reviews
• New complementary sanction: the industrial tribunal may order the employer to add to the whistleblower’s personal training account (CPF) up to a ceiling of €8,000. Also, any proceedings against a whistleblower on account of information reported or disclosed may be sanctioned if they are deemed to be abusive or dilatory. The amount of the civil fine that can be imposed by the courts is increased to €60,000. In case of legal proceedings against whistle-blowers or when a whistle-blower initiates legal proceedings on the basis of retaliation, the judge can order the other party to pay an indemnity covering the whistle-blower’s expected legal costs and/or the deterioration in his/her financial situation. Publication of court decisions in the press is now also a possibility.

Ukraine Special Flash:

France has announced measures to facilitate Ukrainians’ immigration: Ukrainians holding a biometric passport do not need a visa and can stay up to 90 days after entering the Schengen area. Ukrainians who do not hold a biometric passport need a visa to stay in France, which will be issued free of charge at one of the consular offices of the states bordering Ukraine.

In addition, the exceptional mechanism of temporary protection was activated. This must be asked to a local State agency. If issued, this protection means that they will receive a residence permit and have access to education, medical care, social assistance and obtain a work permit. The process to obtain this work permit is about to be simplified over the next weeks (a Decree is expected to be adopted early April 2022). This protection currently lasts 6 months.

CASE LAW

Prohibiting alcohol

Internal regulations (so called “réglement intérieur”), which are compulsory in companies with at least 50 employees, must lay down health and safety rules. A number of restrictions may be set, subject to the labour administration’s control who shall check whether these are legitimate and proportionate to the aim sought.

Because the French Labour Code expressly allows certain “light” alcoholic beverages to be brought, case law has rejected general prohibition of all types of alcoholic beverage within the premises.

In a decision dated 14 March 2022, the Supreme Administrative Court (Conseil d’Etat) admitted the validity of a generic alcohol prohibition within an industrial site, due to the nature of the business. It rejected the labour administration’s argumentation following which the employer had not characterised the existence of a particular situation of danger due to the lack of figures on the number of work accidents or prior disciplinary issues in relation to alcohol consumption on this site.

This is clearly an important nuance to current case law. However, such a ban may still not be based on general considerations but should be limited to activities: those for which it is obvious that alcohol consumption and employees eventually being drunk would not allow the employer to comply with its duty to protect the employee’s health, which may trigger its civil and criminal liability.

Deadline for lifting a post- termination non-competition clause

The terms and conditions for waiving a post termination non-competition clause are laid down in the employment contract or in the sectorial collective bargaining agreement, if any. These provisions usually provide for a period of time following notification of the termination, allowing the employer to unilaterally waive the clause. Not waiving on time means that the non- competition undertaking applies, and the employee shall then receive the associated monthly compensation for the whole duration of the clause.

The question is when to waive the clause when the termination of the contract occurs by mean of a mutually agreed termination (rupture conventionnelle).

In a decision dated 26 January 2022, the Supreme Judicial Court (Cour de cassation), now sets an absolute limit: if the employer intends to lift the non-competition clause, he must do so no later than the date of termination set by the termination agreement (which would generally be the day after the labour administration’s approval of such termination). This limit prevails on any longer timeframe stipulated in the employment contract or the sectorial collective bargaining agreement. This is an important rule to keep in mind, as labour contracts often included a two-week period after termination.

LOOKING FORWARD

French Supreme Judicial Court to assess the full enforceability of the so called Macron indemnity scale

An important ruling is due on 11 May to decide whether, in case a dismissal is ruled without fair grounds, labour courts may grant damages above the grading scale provided by the law.

New measures to help businesses deal with the consequences of the war in Ukraine

Current Prime Minister Jean Castex publicly announced the reactivation of several emergency measures created during the Covid-19 crisis, to support businesses impacted by the war:

• possibility of using long-term partial activity (LTPA) to cope with reductions in activity caused by export or raw material supply difficulties;
• allow companies to defer all or part of the payment of social security contributions and to obtain delays in the payment of their direct taxes;
• measures to help in dealing with cash flow, including an increase in the borrowing ceiling for State-guaranteed loans.