Coronavirus 2019-nCoV: What obligations for employers under French Labour Law ?
Published on : 10/02/2020 10 février Fév. 2020By Frédéric-Guillaume Laprévote, partner lawyer, and Marie Vacassoulis, associate lawyer, Flichy Grangé Avocats, Paris (France)
On January 30, 2020, the World Health Organization declared Coronavirus 2019-nCoV to be a public health emergency of international concern.
As of today, the 2019 Coronavirus-nCoV detected in Wuhan city of China has caused more than 28,000 infections and more than 500 deaths. France has confirmed 6 cases of Coronavirus on its territory.
Despite a low risk of spread in France according to the French Public Health Agency (SPF) and the European Center for Disease Prevention and Control (ECDC), the speed of spread of this virus should encourage employers to consider putting implementation of measures to prevent, or even react to, possible situations linked to this Coronavirus.
1. What are the first measures to put in place?In order to comply with its safety obligation, mentioned in article L. 4121-1 of the French Labour Code, the employer must implement measures for the protection of the physical and mental health of employees, in connection with the Occupational Medicine and the staff representatives, the absence of consultation of the latter being 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 its activity in the event of a major crisis, such as an epidemic.
- Organize the repatriation of expatriate employees, seconded employees or employees in business trip in areas affected or likely to be soon 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 organized 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 such an employee.
- Limit as much as possible the travel of employees, by plane 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 patients, or even organize an exemption from activity with maintenance of remuneration for a period calculated with regard to the incubation period of Coronavirus 2019-nCoV.
- Inform employees likely to have been exposed or to 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.), in particular for employees exposed to risk (namely expatriate employees, seconded employees or employees in business trip in areas affected or likely to be soon affected by Coronavirus 2019-nCoV and the employees in contact with people coming from or likely to come from areas affected by the epidemic).
- Organize training actions for employees likely to be exposed to Coronavirus 2019-nCoV.
- Plan regular disinfection of 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, derogate from the working hours at night in order to compensate for the absence of employees unable to work.
- Possibly provide psychological support for employees likely to have been exposed or to be exposed to Coronavirus 2019-nCoV.
2.What developments should be anticipated?Employers could also be confronted with employees who would exercise their right of withdrawal (“droit de retrait”), or even with the exercise 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 a member of the health, safety and working conditions committee (“commission santé, sécurité et conditions de travail”)). In these conditions, employers are recommended to prepare for the initiation of an investigation and, if necessary, to address the potential consequences when the risk is characterized. It will be recalled that the benefit of the employer's inexcusable fault (“faute inexcusable”) is de jure for the employee or employees who would be the victim of an occupational disease when they themselves or a staff representative had reported to the employer the risk that materialized.
Employers may also have to face requests for recognition of Coronavirus 2019-nCoV as an occupational disease (“maladie professionnelle”) by infected employees. Indeed, a characterized illness not designated in a table of occupational illnesses can also be recognized 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 this or a permanent incapacity at a rate at least equal to 25% after an opinion from the regional committee for recognition of occupational diseases. In case of such requests for recognition of the professional origin of contaminations by Coronavirus 2019-nCoV, it would be up to employers to assess the opportunity to challenge such a qualification and the consequences which would result from it, having regard to the circumstances of each individual case. With regard 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.
It will be recalled that the employment contract of the employee who suffers from an occupational disease is suspended for the duration of the sick leaves caused by the illness. During periods of suspension of the employment contract, the employer can only terminate the latter if he justifies either a serious fault on the part of the person concerned, or he is unable to maintain this contract for a reason unrelated to the illness. At the end of these periods, the employee must return to his job or a similar job with at least equivalent remuneration. The consequences of an occupational disease cannot cause the employee any delay in promotion or advancement within the company.
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.
3.What are the repercussions in terms of remuneration in the event of isolation, eviction or maintenance at home?A decree n ° 2020-73 dated January 31, 2020 determines the conditions for payment of the sickness benefits delivered by the health insurance schemes for the people who are the subject of a measure of isolation, eviction or home support and 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 being met. It also plans not to apply the waiting periods, in order to allow the payment of daily allowances from the first day of stoppage.
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