Decrees, orders or guidelines in effect and pertaining to reopening facilities.
- The French Ministry of Labour has provided detailed guidelines for various businesses and facilities. These outline specific health and safety measures to implement in order to reopen while ensuring the security of workers and customers. The guidelines are tailored to the specificities of the business activity.
Optimal approach to keep track of the latest updates.
- Flichy Grangé Avocats is updating its website regularly with information on how to reopen workspaces safely, and is hosting webinars through the L&E Global network covering the various legal questions and challenges that are raised.
- Government subsidies and special relief resources allocated to support employers, and workers, in their efforts to maintain employment and pull through the crisis.
- The major government assistance has been in the form of the “Short Time Work” or “Activité Partielle” scheme that allows employers affected by the pandemic to be reimbursed by the State for the wages paid to employees who cannot continue to work full time.
- Relief packages have also been enacted by parliament for many small businesses.
- There have been deferred or even cancelled social charges and contribution dues for certain categories of businesses.
Requirements mandated by law or any official guidance.
- A decree from 11 May 2020 also provides for certain health and safety measures that must be respected by establishments open to the public:
- The operator must implement measures to slow down the spread of the virus. This includes the hygiene measures defined in the decree, i.e.:
- regular hand washing with soap and water (access to which must be facilitated by the provision of single-use towels) or by hydro-alcoholic hand gel;
- systematically cover your nose and mouth by coughing or sneezing into your elbow;
- Blowing one’s nose in a disposable tissue to be disposed of immediately in a dustbin;
- Avoid touching your face, especially your nose, mouth and eyes;
- Being reminded that masks must be worn systematically by everyone when the rules of physical distance cannot be guaranteed;
Measures typically implemented by employers and the associated legal risks, limitations, obligations and issues to consider.
- The common measures include providing masks and requiring that they be worn indoors, providing disinfectant gel and wipes, and facilitating the flow of people in workspaces so as to allow for social distancing.
- The return to workspaces has been progressive, with many businesses continuing remote work if possible.
- Employees are being trained on the proper use of protective gear and new protocols for working safely.
- Temperature checks are a grey zone in French law, as they raise some legal issues regarding privacy and personal data.
- Contact tracing has been put in place at a national level.
- Policies and procedures for telework once the business reopens.
- Some businesses with desk-workers are continuing 100% telework until September 2020. The Prime Minister indicated that this should remain the “principle” if possible, for the moment.
- The Ministry of Labour has provided guidelines and Q&A’s to help with setting a framework for employers and workers.
- Collective bargaining or companywide agreements may provide for additional rules and procedures. Some companies are negotiating such agreements on telework for it to continue on a partial basis well into the future.
Management of quarantine, childcare and medical leave for employees affected by COVID-19.
- An employee sick with COVID-19 is put on standard French sick leave, where the State social security and company benefits are paid to the employee. The applicable collective bargaining agreement may provide for the maintaining of salary for several months.
- The special authorizations for absence due to childcare will be granted only to employees to whom the school or the town hall can provide a certificate demonstrating that the school or daycare is closed or unable to welcome children. These employees will be counted as remaining on “short time work”.
- However, parents who do not wish to send their children to school despite it being reopened will have to find an arrangement with their employer: if it is not possible for them to balance childcare and remote work, then the days at home will have to be deducted from their vacation accrual.
Employees who fear infection and refuse to work.
- Employees who have unjustified fears should be reassured, but since they are bound by an employment contract they must submit to the order to return to work or face disciplinary action.
Disclosure of employees who are infected.
- The government has put in place guidelines for handling an employee displaying symptoms. Companies should however formalize their own ad hoc protocols. The employee is to be isolated, put in contact with a doctor and then sent home. The occupational health services should be contacted and contact tracing will be activated.
To what extent can employers implement the following cost-reduction strategies as a result of COVID, and what are the primary limitations on each?
- Furloughs: it is not possible to furlough an employee without pay. Short time work can be used, subject to administration approval.
- Salary reductions: salary reductions are not possible without the employee’s consent.
- Redundancy: economic layoffs are possible if they are justified by a real and serious economic rationale that can be demonstrated. Standard dismissal procedures outlined by the French labour code must be followed.
- Facility closure: If this will result in job losses, there must be an economic rationale. If it only results in a change in work location for employees, this can still constitute a modification of their contract and procedures might need to be implemented.
Note that businesses that were forced to close down by government orders were and are entitled to a host of benefits: short time work for the employees impact and various stimulus packages to help offset a part of the economic fallout resulting from the closure.
Tips, recommendations and common pitfalls.
- Businesses should update their unique professional-risk evaluation document.
- There are important policies to update, in particular regarding health and safety measures in the workplace, working hours, and remote work. It may be necessary to amend the company handbook/internal regulations accordingly.
- The staff representatives (works council) should be informed and consulted on measures and changes.