COVID-19 –French employment law alert

Updated 6 April

Since January 2020, an epidemic of Coronavirus COVID-19 (ex 2019-nCoV) has spread from China.

After having closed schools, universities, public areas, shops, restaurants, on 16 March 2020, the President of the Republic decided to take measures to reduce contacts and travels to the strict minimum throughout the country as of Tuesday 17 March at noon, for an initial 15-day period, renewed until April 15, 2020. 

Travel is permitted on the basis of a certificate in the following cases:
 

• Travel from home to work when teleworking is not possible or in the case of business trips that cannot be postponed.
• To purchase supplies necessary for the professional activity and purchase for basic necessities in authorised local shops.
• For consultation and care that cannot be provided remotely and cannot be postponed; care of patients suffering from a long-term illness.
• To travel for childcare and to help vulnerable people on the strict condition that the barrier gestures are being applied.
• For the exercise of individual physical activity around the home within the limit of one hour per day and within a maximum radius of one kilometre around the home, excluding any collective sporting activity and for the needs of pets or for a walk with only the persons living in the same home.
• In the event of a judicial or administrative summons.
• In the event of participation in missions of general interest at the request of the administrative authority

The first infringement of these rules is punishable by a fine as provided for 4th class tickets (€135), the second infringement occurring within a 15-day period is punishable by a fine as provided for 5th class tickets (€200). In case of multiple infringements of these rules, the fourth one occurring within a 30-day period is punishable by a fine up to €3,750 and a prison sentence up to 6 months.

You can find all the official answers to questions about the Coronavirus COVID-19, as well as health recommendations on the platform https://www.gouvernement.fr/info-coronavirus.

You will find below an updated summary as of 6 April 2020 of the main information relating to the measures specifically put in place in the fight against the Coronavirus COVID-19.
 

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Employer's duty of care and risk assessment

Given its duty of care, every employer must take all necessary measures to ensure the protection of the health and safety of employees.

Employers shall therefore assess the risks associated with covid-19 and implement measures to protect employees against these identified risks. These may include information on health measures and government recommendations, layout of premises, reorganization of work, assignment to a new workstation, teleworking, etc. 

The single risk assessment document (document unique d'évaluation des risques - DUER) should be updated with the assistance of the Social and Economic Committee ("CSE"). 


Telework

The most efficient way to prevent the spread of covid-19 is to limit physical contacts. That is why the French Government has announced that it is imperative that telework be implemented for all employees who can telework until further notice.

In exceptional circumstances, in particular the threat of an epidemic or in the event of force majeure, the implementation of telework can be considered as an adaptation of the workstation made necessary in order to ensure the continuity of the company's activity and to guarantee the protection of employees. In such cases, the consent of the employee, which is normally mandatory, is not required and the implementation of telework does not imply the fulfilment of particular formalities between employees and employers. However, as far as it concerns the modification of the work organisation, it requires the information and consultation of employee representatives. 

Nevertheless, in light of the obligation to protect employees, the employer must ensure that the employee can carry out his or her duties from home without risk to his or her health.

The employer shall also ensure that employees are provided with the necessary IT tools for telework.

In addition, the risks associated with telework, such as isolation, must be assessed and the employer must take the necessary measures to prevent them. This assessment must be carried out as part of the updating of the single risk assessment document (DUER).

Work stoppage and compensation 

Some employees may not be able to work due to a quarantine measure or the closure of day-care centres and schools. Thus, the employees mentioned below are entitled to receive a daily social security allowance from the French Social Security Administration as from the first day of their work stoppage and with no minimum seniority requirement:
 

• Employees who are in quarantine after having been identified as a "high-risk contact case" ("cas contact à haut risque") by the Regional Health Agency,
• Employees caring for children under the age of 16 or children with disabilities without age limit during the closure of his/her day-care centres and schools, when telework is not possible. In this case, employers fill in a declaration online (https://declare.ameli.fr/). Only one parent may benefit from this work stoppage, however, it may be shared between the parents if it is possible to split it. An application must be completed for each period of the work stoppage.
• Vulnerable employees (especially employees admitted on long-term leave or pregnant women mainly from the third trimester of pregnancy) and for whom telework is not possible.

In addition to the social security benefits, it is also provided that these employees are entitled to an additional allowance paid by the employer without any seniority condition and from the first day of the work stoppage, which guarantees them, taking into account the daily allowances of the Social Security, 90% of their remuneration for 30 days and then 66.66% for the following 30 days. This provision is applicable until August 31, 2020. However, no details have been provided as to how this rule relates to the provisions of any contractual or conventional (i.e. provided for the applicable Collective bargaining agreement) health insurance scheme that may be in force. In our opinion, the principle of preference should be applied.

Paid vacation

The fact that the confinement decided by the French Government does not allow employees to go out and enjoy outdoor leisure activities is not an obstacle to the benefit of paid leave already approved by the employer. Employees may not compel the employer to postpone their paid leave because of the confinement. 

Pursuant to the French Labour Code, if there is no provision in the applicable Collective bargaining agreement, the employer may not, save in exceptional circumstances, modify the order and dates of paid holidays less than one month before the planned departure date. 

However, given the current exceptional circumstances due to the covid-19 epidemic, an employer may ask an employee to postpone his planned and agreed vacation. This change in the dates of vacation is possible for employees who occupy positions that are essential to the company (for example a pharmacist or a food retail employee). The employer must inform the employee as early as possible and may grant him/her a compensation for the financial loss due to the cancellation of his/her holidays.

The applicable Collective bargaining agreement may contain provisions in this respect and the employer shall comply with such provisions when considering changing an employee's paid holiday dates.

In order to deal with the covid-19 epidemic, the Government issued an order adapting the usual rules on paid holidays. 

Thus, Order No. 2020-323 of 25 March 2020 provides that, as an exception to the legal and collective provisions applicable within a company, a company agreement or, failing that, a branch agreement, may:
 

• determine the conditions under which the employer is authorised to impose the taking of paid leave days acquired by an employee, including before the beginning of the period during which they are normally intended to be taken;
• provide for the manner in which the employer may unilaterally change the dates on which paid leave is taken (subject to a reduced period of notice);
• authorise the employer to split leave without the employee's consent and to set the dates of leave without being obliged to grant simultaneous leave to spouses or partners bound by a civil solidarity pact working in the employer's undertaking.

The collective bargaining agreement can only allow the employer to force the employee to take paid leave or to modify the dates of the leave in the limit of six working days and subject to the compliance with a notice period of one clear day. 

In any event, the period of paid leave imposed or modified pursuant to these provisions cannot extend beyond 31 December 2020.   

Days of rest ("JRTT") – Time savings accounts 

Employees who are subject, for examples, to a working week of more than 35 hours or to a lump-sum working time arrangement computed in days or hours over the year ("forfait-jours") may be entitled to days of rest ("JRTT"). These JRTT are provided for in the applicable collective bargaining agreement or a company-level agreement. This agreement shall provide for the number of JRTTs, which can be freely set by the company during the reference period, the notice period and the process for changing the JRTT schedule. 

In the present situation, the employer may change the position of some JRTTs during the reference period, subject to compliance with the provisions of the applicable collective bargaining agreement, the notice period and the number of JRTT days that the Company may freely set.

In addition to these general rules, an Order No. 2020-323 of 25 March 2020 provides that when the interests of the company justify it in light of the economic difficulties related to the spread of covid-19, by way of derogation from the collective bargaining agreement provisions setting the JRTT and subject to compliance with a notice period of at least one clear day, the employer may unilaterally:
 

• impose the taking, on dates determined by him, of rest days at the employee's choice acquired by the latter;
• change the dates on which days of rest are taken.

Similarly, when the interests of the company justify it in view of the economic difficulties linked to the spread of covid-19, by way of derogation from the legal and contractual provisions relating to agreements for fixed days and hours over the year and subject to observing a period of notice of at least one clear day, the employer may unilaterally:
 

• decide that its employees shall take rest days provided for in a lump-sum agreement on dates determined by the employer;
• change the dates on which days of rest provided for in a lump-sum agreement are taken. 

The employer may also derogate from the legal and contractual provisions relating to timesaving accounts and require that the rights allocated to the employee's time-saving account be used to take rest days, the dates of which he shall determine by observing a notice period of at least one clear day.  

The period for taking rest days imposed or modified in application of the new provisions may not extend beyond 31 December 2020. 

The total number of rest days the employer can force the employee to take or the number of rest days of which the employer can modify the dates pursuant to the new provisions mentioned above cannot be superior to 10 days.

When implementing one or more of these measures, employers shall inform the Social and Economic Committee immediately and by any means. The Committee renders its opinion within one month of such notification and may be issued after the employer has  implemented such option.

Maximum working time and minimum rest periods

Pursuant to Order No. 2020-323 of 25 March 2020, the companies that belong to specific sectors of activity considered as necessary for the Nation's security and to the continuity of the economic and social life (as determined by Decree) by way of derogation from any applicable treaty provisions:
 

• the maximum daily working time may be extended to 12 hours;
• the maximum daily working time performed by a night worker may be extended to 12 hours, subject to the granting of a compensatory rest period equal to the excess of the maximum period provided for by law;
• the daily rest period may be reduced to 9 consecutive hours, subject to the granting of a compensatory rest equal to the length of the rest the employee was unable to take;
• the maximum weekly rest period may be extended to 60 hours;
• the weekly working time calculated over any period of 12 consecutive weeks or over a period of 12 months for certain agricultural holdings, enterprises, establishments and employers mentioned in the Rural Code may be extended to 48 hours;
• the weekly working time of night workers calculated over a period of 12 consecutive weeks may be extended to 48 hours.

The forthcoming Decree will specify for each of the sectors of activity concerned the derogations previously mentioned which will apply to them. 

An employer who intends to make use of one of these derogations must inform the Social and Economic Committee and the Regional Director of Labour and Employment (DIRECCTE) immediately and by any means. The Committee renders its opinion within one month of this information and may give its opinion after the employer has applied one of these derogations.

The implemented derogations shall cease to have effect on 31 December 2020.

Work on Sunday

Undertakings in sectors of activity particularly necessary for the security of the Nation and the continuity of economic and social life, as determined by Decree, and undertakings, which provide the latter with the services necessary for the performance of their main activity, may derogate from the Sunday rest rule by allocating weekly rest on a rotating basis.

This derogation shall also apply in the departments of Moselle, Bas-Rhin and Haut-Rhin and shall cease to have effect on 31 December 2020. 

When implementing this derogation, employers shall inform the Social and Economic Committee immediately and by any means. The Committee renders its opinion within one month of such information notification and may give its opinion after the employer has applied this derogation.

Short-time work

The short-time work system ("activité partielle") allows employers, in case of a financial loss due either to the temporary closure of their establishment or part of an establishment or a reduction in the applicable working time, and with the express or implicit authorization of the administrative authority, to obtain financial assistance from the State in order to be able to pay employees. The purpose of this scheme is to enable companies to overcome temporary economic difficulties without resorting to the economic dismissal of all or part of their staff.
 

• Eligibility of companies for the short-time work system

All companies whose activity is reduced as a result to the covid-19 and in particular, those subject to a closure order pursuant to the Decree of 15 March 2020 (restaurants, cafés, shops, etc.) are eligible for short-time work. Companies that do not have an establishment in France but which employ employees and are subject to social and conventional contributions and unemployment insurance obligations for these employees may benefit from this system.
 

• The employees concerned

All employees holding an employment contract are now eligible for the short-time system (permanent, fixed-term, temporary, apprenticeship and professional training contracts), regardless of the legal or conventional procedures for calculating their working hours (employees subject to a working time arrangement in hours or days over the year, part-time employees, senior executives, etc.). Employees employed at home and childcare assistants have been admitted by way of derogation and until 31 December 2020 to the short-time work scheme, with slightly different rules, in particular as regards the compensation.

Short-time work is now compulsory for protected employees, for whom companies are no longer required to obtain their prior consent during the period of application of the exceptional scheme (until 31 December 2020), as long as it affects all employees of the company, establishment, department or workshop to which the employee is assigned or attached.
 

• Consultation of the Social and Economic Committee

In companies with more than 50 employees, the implementation of short-time work within the whole company or part of an establishment is subject to the prior information and consultation of the Social and Economic Committee (CSE). However, given these exceptional circumstances, the Labour Code provides that this opinion may be obtained after the request and transmitted to the DIRECCTE within a maximum period of two months from the request for short-time work.

In the absence of a CSE, it is the employer's responsibility to inform employees of the implementation of the system and to post an information note in the premises. Due to the containment situation, it is recommended to proceed by e-mail or by posting a memo on the intranet site. 
 

• Terms and conditions for applying for short-time work system

The employer applies for short-time work online (https://activitepartielle.emploi.gouv.fr/aparts/). Due to the high number of requests, this website regularly experiences connection difficulties.

Companies have 30 days to submit their request, with retroactive effect. 

In order to apply for short-time work, various information is required, such as the reason for the request, the detailed circumstances of the economic situation that gave rise to the request, the start and end date of the short-time work period, the number of employees concerned and the number of hours not worked over the period. 

Until 31 December 2020, the administrative authority shall have two days to issue its decision. After this period, its silence shall constitute acceptance.

The administrative authorisation for short-time work can now be granted for a maximum period of 12 months instead of 6 months.
 

• Amount of employee compensation and short-time work allowance paid to companies

During the short-time work period, the employment contracts are suspended and not terminated and employees receive a compensation from their employer equal to 70% of their gross remuneration, which equals to 84% of their net remuneration. Overtime is not covered by the short-time work compensation system.

There are special provisions for calculating compensation for part-time employees, employees on a professional training contract or an apprenticeship contract.

New entries must now appear on the pay slip of employees who have been placed in short-time work: 
 

• the number of hours off work compensated for the short-time work; 
• the rate applied for the calculation of the compensation; 
• the amount of the corresponding compensation paid to the employee.

In order to help companies to pay these compensations, companies receive an allowance from the State corresponding, for each employee, to 70% of his/her gross remuneration, up to a limit of 4.5 times the SMIC (i.e. €45.675 per hour). The hourly rate of the allowance cannot therefore be higher than €31.98 (70% of €45.675).

The hourly rate of the allowance may not be less than €8.03 (this minimum does not apply to apprenticeship or professional training contracts).

The annual quota of short-time hours eligible for this allowance, normally set at 1,000 hours per employee per year, has been increased to 1607 hours until 31 December 2020.

For employees subject to an annual lump-sum payment in days and for employees who are not subject to the legal and collective bargaining provisions on working hours, a future Decree will set the terms and conditions for calculating the compensation and allowance.

These compensation rules apply in the same way to employees undergoing training during the period of short-time work, who no longer receive compensation amounting to 100% of their net remuneration.
 

• Social security system for employee allowances

In principle, the allowances paid by companies to employees within the limits of the legal provisions are exempt from social security contributions but subject to the CSG at the rate of 6.2% and the CRDS (0.5%). These two contributions are calculated on the basis of 98.25% of the indemnity paid (application of a 1.75% allowance for business expenses).

This CSG rate of 6.2% also applies to additional allowances paid to employees pursuant to a collective agreement or a unilateral decision. However, the Ministry of Labour has indicated that any amount paid as compensation for time-off that is not eligible for compensation in respect of short-time work rules because it exceeds the legal working time, is subject to social security contributions and contributions at a normal rate, in the same way as any other kind of remuneration. 

Social and Economic Committee
 

• Meetings

For the duration of the state of public health emergency, i.e. at least until 24 May 2020, meetings of Social and Economic Committees, Central Social and Economic Committees or another staff representative body provided for in the Labour Code may be held remotely in the following manners :
 

• Via video-conference; the cap of three meetings held by video-conference per calendar year provided for in the French Labour Code in the absence of a collective agreement on this point does not apply to meetings held during the health emergency period;
• Via telephone conference (audio conference), in compliance with the conditions to be laid down by a Decree to be released;
• or via instant messaging, in compliance with conditions to be set by a Decree to be released, in the event that videoconferencing or conference calls cannot be used, or when a company-wide agreement provides for it.

The employer shall inform the members of these employee representative bodies in advance of such meeting arrangements.
 

• Elections

In the event that the election process of the Social and Economic Committee has been started before 3 April 2020, the elections process shall be suspended from 12 March 2020 until a date set at three months after the end of the state of public health emergency. However, the conditions of electorate and eligibility will be assessed on the date of each round of the election.

When the suspension of the electoral process takes place between the first and the second rounds of the election, it does not affect the regularity of the first round. Such suspension of the electoral process shall not affect the regularity of the first or second round of the elections, when these rounds took place between 12 March 2020 and 3 April 2020.

As an exception to the applicable rules, when the mandate of the members of the Social and Economic Committee expires less than six months after the date of the end of the suspension of the election process, no by-elections shall be held, whether or not the election process has been initiated before the suspension of the election process.

The employer shall initiate the election process within three months of end of the public health emergency in the following cases:
 

• when, between April 3, 2020 and the date of cessation of the health emergency, organizing elections has become mandatory;
• when, prior to 3 April 2020, the employer did not initiate the election process although it was obliged to do so.

If, as a result of the suspension or postponement of the election process, the mandates of the employees' elected representatives in force on 12 March 2020 have not been renewed, these mandates shall be extended until the results of the first or, where applicable, second round of the elections are proclaimed.

Protection against dismissal, protection in the event of termination of a fixed-term contract and protection in the event of interruption or non-renewal of a temporary assignment remain applicable for the entire duration of the mandate extensions.

Finally, protection against dismissal of candidates for election is also extended until the results of the first or, where applicable, second round of elections are proclaimed, when the six-month period of protection expires before the date of the first round.

Mandatory profit sharing ("Participation") / Optional profit sharing ("Intéressement")

The deadline for payment to beneficiaries or allocation to an employee savings plan or a blocked current account of the amounts allocated under a mandatory or an optional profit sharing plan in 2020 is extended to 31 December 2020.

Besides, optional profit-sharing agreements entered into between 1 January 2020 and 31 August 2020 may be concluded for a period of one to three years. As an exception to Article L. 3314-4 of the French Labour Code, optional profit-sharing agreements give entitlement to tax and social exemptions even if they are concluded after the first day of the second half of the calculation period following the date on which they take effect.

Exceptional premium ("Prime exceptionnelle pour le pouvoir d'achat", also called "Prime Macron")

This exceptional premium has been introduced by the Macron government. It is aiming at improving the purchasing power of workers. The conditions laid down for benefiting from social and tax exemptions are amended as from 2 April 2020.

Given the exceptional circumstances,, companies that are not covered by an optional profit-sharing agreement are now allowed to pay this exceptional premium of up to €1,000 per employee. For companies that are covered by such an optional profit-sharing agreement on the premium payment date, the maximum amount exempted from taxes and social security contributions is increased to €2,000 per employee.

As from 2 April 2020, not only employees bound by an employment contract on the premium payment date may benefit from this exceptional premium but also those bound by an employment contract on the date of filing of the agreement or signature of the employer's unilateral decision setting up this exceptional premium.

This exceptional premium's amount may also be adjusted to take into account the working conditions linked to the covid-19 epidemic.

Finally, the deadline for paying this premium in order to benefit from social and tax exemptions has been extended from 30 June 2020 to 31 August 2020.

Professional interviews

The professional interview taking place in 2020 and summarising the employee's career path, which must be held every 6 years, may be postponed at the employer's initiative until 31 December 2020.

Occupational physicians
Due to the nature of their missions, occupational health services are involved in the fight against the spread of covid-19.

By exception to the applicable rules, in the event of infection or suspected infection with covid-19, the occupational physician may prescribe and, where appropriate, renew a sick leave, under conditions laid down by a decree to be published. Besides, the occupational physician may carry out screening tests for covid-19 according to a protocol defined by a Decree to be released. A Decree to be released shall also determine the deadline for the application of these measures which shall be no later than 31 August 2020.

The medical examinations to be carried out as of 12 March 2020 as part of the individual monitoring of employees' state of health may be postponed under conditions defined by a Decree to be released, except when the occupational physician deems it essential to maintain the examination, particularly in view of the state of health of the employee or the characteristics of his or her position.

Postponement of the visit does not prevent the recruitment or return to work. Postponed medical examinations shall be held before 31 December 2020.