The legal implications of the coronavirus for the employer by Julie DREKSLER – Employment lawyer specialist

The Employer safety-result obligations during the coronavirus crisis under French Law explained by Julie DREKSLER

Julie DREKSLER – Lawyer – specializes in employment law

➔ Labor law does not mess with the health of employees. In this area, the employer is bound by a strict safety obligation vis-à-vis its employees (article L. 4121-1 of the Labor Code). “This obligation is not only an obligation of means but above all of result, with civil or even criminal sanctions:
Under article L4121-1 of the Labor Code, the employer must take the necessary measures to ensure safety and protect the mental and physical health of workers:
– carry out an assessment of the risks incurred in the workplace, – determine the most relevant prevention measures,
-associate staff representatives with this work,
– solicit when possible the staff representatives,
– seek the service of the occupational doctor, where possible
mission of advising the employer
-respect and enforce the barrier gestures recommended by the health authorities,
➔ The responsibility of the employer may be sought upstream of any attack on the physical or mental integrity of the worker, with in particular the occurrence of a work accident or occupational disease.
It is up to the employer to update the single risk assessment document provided for in article R 4121-1 of the Labor Code. It allows for the provision of adequate prevention and protection measures.
The employer may consult the social and economic committee (CSE): (compulsory from 50 employees).
The mission of the CSE is to promote health, safety and the improvement of working conditions. In particular for companies with more than 50 employees, the CSE is informed and consulted on questions and on any arrangement on health, safety and working conditions and in particular for:
– significant changes in the organization of work,
– the use of partial activity,
– derogations from the rules relating to hours of work and rest.
The CSE can be convened at the request of two of its members.
If a member finds that there is a cause of serious and imminent danger, he immediately notifies the employer and records this opinion in a register.
I / teleworking (the standard)
Article L. 1222-9 and article L 1222-11 of the Labor Code cites the “epidemic threat” as a reason for resorting to telework, without even having to obtain the employee’s agreement.
Telework normally involves an agreement between the employer and the employee, and is based on voluntary work.
* Article L1222-11 of the Labor Code: “in the event of exceptional circumstances, in particular of threat, epidemic, or in the event of force majeure, the implementation of teleworking, can be considered as an arrangement of the work station, made necessary to allow the continuity of the business and guarantee the protection of the employee. ”
The employee must ask his employer to benefit from telework on an ad hoc or lasting basis and by all means.
The employer can either: -place the employee in telework
-or modify his leave dates if the employee has already made his leave.
II- Work stoppage for childcare under 16
The employer must declare his work stoppage on the ameli.fr website. The employee must send a certificate in which he agrees to be the only parent who requests the benefit of a work stoppage, to keep the child at home whose name, age, name of the school establishment where the child is enrolled and informs of the reopening date of the establishment.
The employee’s salary must be maintained up to the amount paid by social security and the employer supplement for the employees concerned. In this case, the employer is automatically subrogated in the rights of his employee towards health insurance.
The employer declares the work stoppage from the day of the start of the stoppage for an initial period of 21 days renewable until the end date of the closure of the school or the reception center by filling in online on the website https://www.ameli.fr or on the website https://declare.ameli.fr. This judgment can be divided and can be shared between the parents.

In application of decree n ° 2020-73 of January 31, 2020, the employee benefits from a judgment of work without a deficiency day and coverage for daily social security benefits.
With regard to the conventional or statutory additional compensation, it also applies without waiting period in application of Decree No. 2020-193 of March 4, 2020 relating to the waiting period applicable to the additional compensation to the daily allowance for the people exposed to coronavirus.

III- On partial activity

The decree n ° 2020-325 of March 25, 2020 came to modify the device of the partial activity.
This partial activity device is intended for companies which are subject to either:
– a reduction in the usual working time of the establishment -a closure of all or part of the establishment
(article R5122-1 of the Labor Code).
The contract is suspended but not broken. During working hours, they are not at the workplace, but remain at his disposal and must comply with his directives.
• Determination of compensable hours
In the event of partial activity, the rule of principle is that only the hours of work lost under the legal working time (35 h per week) – or, if it is less, under the collective or contractual working time – be compensable (c. trav. art. R. 5122-11 and R. 5122-19).
In the sectors determined by decree or by broad branch agreement in which a period called “equivalence” applies to the legal working time, the government has provided, exceptionally, that the paid equivalence hours were also compensable, from March 28 until a date to be fixed later by decree, and at the latest until December 31, 2020 (ordin. 2020-346 of March 27, 2020, art. 1, OJ of 28). As a reminder, the equivalence hours in question are those worked and remunerated between 35 hours a week and the applicable equivalence duration (eg 39 h).
On the other hand, beyond the legal working hours – or, if it is shorter, the collective or contractual working hours – the non-working hours are not compensable for partial unemployment (cf. work art. R. 5122-11).
In fact, overtime lost beyond the statutory working time (or the temporary equivalence period), as well as overtime for part-time employees, is not eligible for partial unemployment.
Unless otherwise used or collective agreement, the employer does not have to compensate or compensate for these hours (c. Work. Art. R. 5122-11). If he does, he will not receive any partial activity allowance for reimbursement as such and the amounts are, according to the administration, subject to contributions under the same conditions as the salary.
In this area, the latest innovations come from a decree of April 16, 2020, which clarified the methods for calculating compensable hours for certain categories of employees.
• Amount of compensation paid by the employer and state allowance
For each compensable hour, the employer pays, on normal pay dates, an indemnity equal to 70% of the reference gross hourly earnings multiplied by the number of hours eligible for partial activity (c. Work. Art. R 5122-18 and R. 5122-14, al. 2).
In return, he receives a reimbursement from the Service and Payment Agency for an allowance of the same amount, but capped, per compensable hour, at 70% of 4.5 SMIC hourly, or € 31.98 per compensable hour on the basis an hourly minimum wage of € 10.15.

The determination of the basis for calculating the partial activity allowance has long raised questions, particularly with regard to the variable elements of remuneration. The Ministry of Labor has just clarified the situation, through its document on partial activity, then the decree of April 16, 2020 (decree 2020-435 of April 16, 2020, OJ of 17). These details are set out below.
For employees with minimum wage or close to minimum wage, the mechanism of the minimum monthly remuneration (RMM) means that the employer must, if necessary, pay an additional allowance to the partial activity allowance so that in total, the hourly compensation paid to the employee is at least equal to the net minimum wage rate. This is why it has been stipulated that the allowance reimbursed to the employer is at least € 8.03 per compensable hour (cf. work art. R. 5122-13).
To benefit from the partial activity, the request must be filed on the activitypartielle.emploi.gouv.fr portal. The employer has 30 days from the placement in partial activity to request it. The administrative authority will validate the requests within 48 hours.
The partial activity system can be requested by companies:
-if they are affected by the decrees providing for closure,
-if they are faced with a drop in activity or supply difficulties -if it is impossible to put in place the preventive measures necessary for the
employee health protection (eg telework, barrier gesture, etc.).
In the event of a complete cessation of activity or sub-activity, companies can apply for FNE training, in order to invest in the skills of employees. (article L6323-11 of the Labor Code).
IV- The right of employees to withdraw
Can an employee refuse to perform his work invoking risk
epidemic?
An employee can exercise his right of withdrawal while being remunerated “if he has reasonable grounds to believe that his work situation presents a serious and imminent danger to his life and his health” (article L. 4131-1),
This right of withdrawal concerns a particular work situation and not a general pandemic situation.
No penalty or deduction from wages may be applied due to the legitimate exercise of the right of withdrawal. The employer cannot ask the worker who uses his right of withdrawal to resume his activity in a work situation where a serious and imminent danger persists.
Conversely, if the exercise of this right is manifestly abusive, deduction from wages for non-performance of the employment contract may be made.
The unfounded exercise of this right does not characterize the existence of a serious fault but can constitute a real and serious cause for dismissal.

This serious and imminent danger to the employee’s life and health will be assessed on a case-by-case basis.

 

The Employer safety-result obligations during the coronavirus crisis under French Law explained by Julie DREKSLER

Julie DREKSLER – Lawyer – specializes in employment law

➔ Labor law does not mess with the health of employees. In this area, the employer is bound by a strict safety obligation vis-à-vis its employees (article L. 4121-1 of the Labor Code). “This obligation is not only an obligation of means but above all of result, with civil or even criminal sanctions:
Under article L4121-1 of the Labor Code, the employer must take the necessary measures to ensure safety and protect the mental and physical health of workers:
– carry out an assessment of the risks incurred in the workplace, – determine the most relevant prevention measures,
-associate staff representatives with this work,
– solicit when possible the staff representatives,
– seek the service of the occupational doctor, where possible
mission of advising the employer
-respect and enforce the barrier gestures recommended by the health authorities,
➔ The responsibility of the employer may be sought upstream of any attack on the physical or mental integrity of the worker, with in particular the occurrence of a work accident or occupational disease.
It is up to the employer to update the single risk assessment document provided for in article R 4121-1 of the Labor Code. It allows for the provision of adequate prevention and protection measures.
The employer may consult the social and economic committee (CSE): (compulsory from 50 employees).
The mission of the CSE is to promote health, safety and the improvement of working conditions. In particular for companies with more than 50 employees, the CSE is informed and consulted on questions and on any arrangement on health, safety and working conditions and in particular for:
– significant changes in the organization of work,
– the use of partial activity,
– derogations from the rules relating to hours of work and rest.
The CSE can be convened at the request of two of its members.
If a member finds that there is a cause of serious and imminent danger, he immediately notifies the employer and records this opinion in a register.
I / teleworking (the standard)
Article L. 1222-9 and article L 1222-11 of the Labor Code cites the “epidemic threat” as a reason for resorting to telework, without even having to obtain the employee’s agreement.
Telework normally involves an agreement between the employer and the employee, and is based on voluntary work.
* Article L1222-11 of the Labor Code: “in the event of exceptional circumstances, in particular of threat, epidemic, or in the event of force majeure, the implementation of teleworking, can be considered as an arrangement of the work station, made necessary to allow the continuity of the business and guarantee the protection of the employee. ”
The employee must ask his employer to benefit from telework on an ad hoc or lasting basis and by all means.
The employer can either: -place the employee in telework
-or modify his leave dates if the employee has already made his leave.
II- Work stoppage for childcare under 16
The employer must declare his work stoppage on the ameli.fr website. The employee must send a certificate in which he agrees to be the only parent who requests the benefit of a work stoppage, to keep the child at home whose name, age, name of the school establishment where the child is enrolled and informs of the reopening date of the establishment.
The employee’s salary must be maintained up to the amount paid by social security and the employer supplement for the employees concerned. In this case, the employer is automatically subrogated in the rights of his employee towards health insurance.
The employer declares the work stoppage from the day of the start of the stoppage for an initial period of 21 days renewable until the end date of the closure of the school or the reception center by filling in online on the website https://www.ameli.fr or on the website https://declare.ameli.fr. This judgment can be divided and can be shared between the parents.

In application of decree n ° 2020-73 of January 31, 2020, the employee benefits from a judgment of work without a deficiency day and coverage for daily social security benefits.
With regard to the conventional or statutory additional compensation, it also applies without waiting period in application of Decree No. 2020-193 of March 4, 2020 relating to the waiting period applicable to the additional compensation to the daily allowance for the people exposed to coronavirus.

III- On partial activity

The decree n ° 2020-325 of March 25, 2020 came to modify the device of the partial activity.
This partial activity device is intended for companies which are subject to either:
– a reduction in the usual working time of the establishment -a closure of all or part of the establishment
(article R5122-1 of the Labor Code).
The contract is suspended but not broken. During working hours, they are not at the workplace, but remain at his disposal and must comply with his directives.
• Determination of compensable hours
In the event of partial activity, the rule of principle is that only the hours of work lost under the legal working time (35 h per week) – or, if it is less, under the collective or contractual working time – be compensable (c. trav. art. R. 5122-11 and R. 5122-19).
In the sectors determined by decree or by broad branch agreement in which a period called “equivalence” applies to the legal working time, the government has provided, exceptionally, that the paid equivalence hours were also compensable, from March 28 until a date to be fixed later by decree, and at the latest until December 31, 2020 (ordin. 2020-346 of March 27, 2020, art. 1, OJ of 28). As a reminder, the equivalence hours in question are those worked and remunerated between 35 hours a week and the applicable equivalence duration (eg 39 h).
On the other hand, beyond the legal working hours – or, if it is shorter, the collective or contractual working hours – the non-working hours are not compensable for partial unemployment (cf. work art. R. 5122-11).
In fact, overtime lost beyond the statutory working time (or the temporary equivalence period), as well as overtime for part-time employees, is not eligible for partial unemployment.
Unless otherwise used or collective agreement, the employer does not have to compensate or compensate for these hours (c. Work. Art. R. 5122-11). If he does, he will not receive any partial activity allowance for reimbursement as such and the amounts are, according to the administration, subject to contributions under the same conditions as the salary.
In this area, the latest innovations come from a decree of April 16, 2020, which clarified the methods for calculating compensable hours for certain categories of employees.
• Amount of compensation paid by the employer and state allowance
For each compensable hour, the employer pays, on normal pay dates, an indemnity equal to 70% of the reference gross hourly earnings multiplied by the number of hours eligible for partial activity (c. Work. Art. R 5122-18 and R. 5122-14, al. 2).
In return, he receives a reimbursement from the Service and Payment Agency for an allowance of the same amount, but capped, per compensable hour, at 70% of 4.5 SMIC hourly, or € 31.98 per compensable hour on the basis an hourly minimum wage of € 10.15.

The determination of the basis for calculating the partial activity allowance has long raised questions, particularly with regard to the variable elements of remuneration. The Ministry of Labor has just clarified the situation, through its document on partial activity, then the decree of April 16, 2020 (decree 2020-435 of April 16, 2020, OJ of 17). These details are set out below.
For employees with minimum wage or close to minimum wage, the mechanism of the minimum monthly remuneration (RMM) means that the employer must, if necessary, pay an additional allowance to the partial activity allowance so that in total, the hourly compensation paid to the employee is at least equal to the net minimum wage rate. This is why it has been stipulated that the allowance reimbursed to the employer is at least € 8.03 per compensable hour (cf. work art. R. 5122-13).
To benefit from the partial activity, the request must be filed on the activitypartielle.emploi.gouv.fr portal. The employer has 30 days from the placement in partial activity to request it. The administrative authority will validate the requests within 48 hours.
The partial activity system can be requested by companies:
-if they are affected by the decrees providing for closure,
-if they are faced with a drop in activity or supply difficulties -if it is impossible to put in place the preventive measures necessary for the
employee health protection (eg telework, barrier gesture, etc.).
In the event of a complete cessation of activity or sub-activity, companies can apply for FNE training, in order to invest in the skills of employees. (article L6323-11 of the Labor Code).
IV- The right of employees to withdraw
Can an employee refuse to perform his work invoking risk
epidemic?
An employee can exercise his right of withdrawal while being remunerated “if he has reasonable grounds to believe that his work situation presents a serious and imminent danger to his life and his health” (article L. 4131-1),
This right of withdrawal concerns a particular work situation and not a general pandemic situation.
No penalty or deduction from wages may be applied due to the legitimate exercise of the right of withdrawal. The employer cannot ask the worker who uses his right of withdrawal to resume his activity in a work situation where a serious and imminent danger persists.
Conversely, if the exercise of this right is manifestly abusive, deduction from wages for non-performance of the employment contract may be made.
The unfounded exercise of this right does not characterize the existence of a serious fault but can constitute a real and serious cause for dismissal.

This serious and imminent danger to the employee’s life and health will be assessed on a case-by-case basis.