The French government recently published a Q&A document in response to concerns about the 2019 Novel Coronavirus, detailing the steps that companies must take if an employee is infected or returns from a risk area and is placed in isolation, or if a company has to reduce its activities.
The Q&A document, published February 28, includes the following guidance for French employers responding to the 2019 Novel Coronavirus (COVID-19).
If An Employee Is Infected
When an employer suspects that one of its employees is infected with the virus, the French government strongly recommends that it consult the government's dedicated website and the employer should encourage the employee to do the same. In the event of an identified risk or serious concerns, the employee at issue, or if necessary, the employer, must call emergency services in order to protect the sick employee, but also to protect other employees of the company, as is the employer’s legal obligation.
If it is confirmed that an employee has COVID-19, the employer must clean and disinfect the premises. Persons in charge of this task must be equipped with disposable gowns and household gloves, and should follow the government’s cleaning recommendations regarding products to be used, steps involved, etc.
Employees Returning From Risk Areas
The government recommends that employees inform their employers when they return from an area declared at risk (as of this writing, China, South Korea, Iran, Singapore, and the Lombardy and Veneto regions of Italy).
An employer informed that an employee is returning from a risk area or has been in contact with an infected person must reorganize the employee’s work for 14 days, giving priority to teleworking. In principle, telework requires the agreement of both the employee and the employer. However, the French Labor Code allows for teleworking without the employee's agreement in the event of an epidemic risk, to ensure the continuity of the company's activity and guarantee the protection of employees. No formalities are required in this case.
If teleworking is not possible, the employer must ensure that the employee avoids close contact with other employees, nonessential meetings, and areas where fragile people are located.
Alternatively, the employer can reschedule the employee’s previously scheduled holidays/vacation days to cover the 14-day period. However, the employer may not impose holidays/vacation days on an employee who has not already scheduled any.
Finally, the employer can use RTT days (days off given to employees within the scope of a reduction of working time), which dates are freely chosen by the employer (generally half of the days granted every year). In that case, the employer must respect the notice period provided for in the collective agreement on the reduction of working time.
If none of these options is possible, the employer can ask the employee returning from a risk area to stay at home. The employee can contact the doctor at the Regional Health Agency (ARS) to request a specific certificate of absence from work. If this certificate has not been issued and the employer asks the employee to stay away from the place of work, the employee's remuneration will be maintained and his/her absence is assimilated to a period normally worked.
In accordance with a decree of January 31, 2020, an employee returning from a risk area who has been placed in isolation—essentially quarantined—for 14 days by a doctor of the ARS will have his/her employment contract suspended. The doctor will issue a certificate of absence, which entitles the employee to daily social security benefits without any waiting time. In addition, he/she will receive the additional conventional or statutory supplementary allowance.
If An Employee’s Child Is In Isolation (Quarantined)
An employee whose child must respect a period of isolation and who does not have a care solution must contact the ARS. The ARS doctor will provide the employee a certificate of absence for the duration of the child's isolation. In this situation, the employee is compensated as if he/she were isolated.
Obligations For Employers When Employees Must Travel To Risk Areas
The Ministry of Foreign Affairs currently advises against travel to risk areas (as of this writing, China, South Korea, Iran, Singapore, and the Lombardy and Veneto regions of Italy) unless there is a compelling reason. However, the government does not prohibit employers from sending their employees to such areas, but reminds them that they are responsible for the health and safety of their employees.
In the event of a mandatory trip, the employer must ensure that the employees concerned follow the government's health and safety guidelines for 14 days after their return.
Right Of Withdrawal
According to the French Labor Code,
The worker shall immediately alert the employer to any work situation which he/she has reasonable cause to believe presents a serious and imminent danger to his/her life or health and to any deficiencies he/she finds in the protection systems.
He/she may withdraw from such a situation.
The employer may not require a worker who has exercised his/her right to withdraw to resume work in a work situation where there is still a serious and imminent danger resulting in particular from a defect in the protection system.
Some employees have already used that right of withdrawal the last few days (employees working at the Louvre Museum or bus drivers, for example). However, the prospect of an epidemic does not give employees a general right of withdrawal. To date, there is little case law on this provision of the Labor Code, especially regarding situations such as the COVID-19 outbreak. The Labor Code’s wording is quite broad, but it does require that the risk be related to the employee’s working situation.
COVID-19 is most dangerous for those with certain health conditions. As such, an employee suffering from a lung disease could legitimately exercise his/her right to withdraw but his/her colleagues could not.
Every situation must therefore be examined on a case-by-case basis. The employer must be a good listener and be able to respond to concerns (sometimes by arranging a workstation or reorganizing teams), but must also bear in mind that abuses may later be sanctioned.
According to the Q&A document, as long as the employer follows the government's recommendations, the employee should not run a serious and imminent danger to his/her life or health and is not entitled to implement the right of withdrawal. On the contrary, if the employer does not comply with the government’s instructions, the employee can exercise his/her right of withdrawal.
Measures In The Event Of A Downturn In Activity
If the outbreak forces a company to adapt its activity downward, this exceptional circumstance allows it to organize partial activity.
This mechanism avoids redundancies and allows employees whose activity is reduced below the legal duration to benefit from a partial activity allowance to compensate for their loss of remuneration. All applications for partial activity allowance must be submitted on the dedicated portal prior to the actual placement of employees on partial activity.
In case of prolonged underactivity or cessation of activity, companies can also apply for FNE-Formation (National Employment Fund – Training). It enables employees to access training to cope with economic and technological changes. In the context of such training, the state may grant aid of up to 50% or even 70% of the employer’s costs (including the remuneration of its employees).
On the opposite end of the spectrum, if the outbreak causes urgent work or increased work activity, the employer may then deviate from some working time regulations, such as 11 consecutive hours of rest, 10 hours of daily work, 8 hours of night work, 44 hours/week on average, or even 48 hours of weekly work.
Roles Of The Social And Economic Committee And Occupational Physician
Issues related to the COVID-19 outbreak may require consultation with the Social and Economic Committee (ESC). The employer will have to consult the ESC upon major reorganization of work or recourse to part-time work or deviations from the rules on working time. The government, however, specifies that precautionary measures for the reorganization of work may be taken prior to the consultation. The ESC may also be convened at the request of two of its members on matters relating to health, safety, or working conditions. A member of the ESC who is aware of a serious and imminent danger may also exercise his/her right of alert.
The occupational physician must also play a role in risk prevention by relaying instructions to employees.
In conclusion, although the government recommends that the population not overreact to the COVID-19 outbreak, nevertheless, it has preferred to respond pragmatically to the questions and concerns of employers and employees. Simple rules should enable employers and their employees to respond if the outbreak progresses.