After a long lockdown period, companies are gradually planning to resume activity. The recent interim measures initiated by trade unions in the retailing and distribution industry provide an insight into the requirements for prevention measures and the role of employee representatives throughout this preparation phase. In particular, the decision of 24 April 2020 handed down by the Lille judicial court provides some keys on how to organise operations during a health crisis.
The case involved a Carrefour Hypermarket, which continued to operate despite the epidemic. The CGT called for the immediate closure of the Hypermarket's non-essential departments, taking the view that employee safety conditions were not sufficient and that the Economic and Social Committee (CSE) had not been involved in assessing health risks. The judge dismissed the request and allowed it to proceed. The judge found that there were sufficient measures taken by the company to protect the health and safety of its employees (I). This decision highlights the importance of involving employee representatives upstream in the assessment of occupational risks related to Covid-19 as well as the changes in the working arrangements required to address these risks and the need for preventive measures and awareness-raising among employees (II).
I. Taking measures to prevent health and safety risks
The ruling by the Lille judicial court sets out the concrete preventive measures against the spread of the virus which enabled the judge to decide in favour of continuing operations. This means that companies will only be able to consider resuming operations if sufficient protective measures are in place.
The judge noted, for example, that Management had (i) defined and put on display the preventive measures and rules of social distancing ( including ground signs) to be respected; (ii) ensure the distribution of hydroalcoholic gel and protective equipment; (iii) organised regular communication with employees and managers; (iv) adjusted the working arrangements; (v) set procedures in the event of contamination or suspected contamination; (vi) filtered customer entries and exits and regulated flows at the entrance; and (vii) ensured that tools and workplaces were cleaned.
It should also be noted that, although the Lille Court ruled that Covid-19 constitutes a pathogenic biological agent within the meaning of the provisions of Articles R.4424-2 and R.4424-3 of the French Labour Code, it nonetheless acknowledged that such status "does not automatically mean closing down certain store shelves (those deemed non-essential by the CGT); however, this doesn’t prevent us from considering the measures to be taken to reduce the risk of exposure to Covid-19.”
As a result, the implementation of these preventive measures is the essential control point for the full continuation of operations. After assessing the relevance of the prevention measures, in particular the limited number of customers on the shelves and the reduced risk of contact between them and employees, the Lille Court ruled that the request to close certain shelves was not justified, insisting that they did not expose employees to any advantage from Covid-19.
Moreover, according to the judges, the distinction between essential and non-essential departments does not appear to be decisive since public authorities have not established an exhaustive list of essential purchases, have not placed restrictions on the purchases which may be made in hypermarkets and have authorised a number of shops specialising in areas other than food.
This line of reasoning echoes the one adopted by the Council of State, which on 18 April 2020 rejected the request of the CGT Metalworkers' Federation for a list of companies in the metalworking industry that are "not essential to the nation" to be drawn up and to order their closure.
On the other hand, it should be noted that the Versailles Court of Appeal ruled that certain Amazon activities deemed non-essential had to be stopped. In the present case, the preventive measures introduced were considered insufficient so that they did not make it possible to ensure the necessary distancing rules to protect employees. This led the Versailles Court of Appeal to stop certain activities deemed non-essential in order to reduce the number of employees in the warehouses.
When lockdown is lifted, it is clear that, regardless of the nature of the business, resuming operations will require, above all, that the employer take concrete measures to protect the health and safety of employees.
II. Involving the CSE upstream and informing employees
Establishing the necessary protective measures for resumption or continuation of activity during the epidemic requires dialogue with employee representatives.
The decisions handed down in April in particular confirm the qualification of Covid-19 as a biological agent, thereby giving rise to specific obligations in terms of risk assessment and the implementation of measures to reduce risks, but also in terms of information and training for employees.
In practice, the risks associated with Covid-19 have to be assessed in order to put in place different prevention measures. In addition, the uniform occupational risks evaluation questionnaire should be updated. Given the exceptional nature of these exceptional circumstances, there is still some uncertainty as to the degree of involvement of employee representatives in these assessments and the determination of measures.
As regards the Carrefour Hypermarket case, the Lille Court found that employee representatives had been involved in monitoring the measures taken by management when setting up a business continuity plan, preventive measures, during alert procedures, etc. A representative of the CSSCT was also in charge of monitoring adherence to the measures in the company.
However, the Lille Court of Justice has ordered the Directorate to involve the CSE upstream in updating the DUER.
In the Amazon case, the Versailles Court of Appeal clearly ordered the company to consult the central CSE and the establishment CSEs on the assessment of occupational risks related to Covid-19 and the implementation of preventive measures.
It should be noted that a decree announced in Ordinance No. 2020-460 of 23 April 2020 has yet to provide practical solutions regarding deadlines for consulting the CSE for the implementation of employer decisions aimed at addressing the economic, financial and social consequences of the spread of the Covid-19 epidemic. Indeed, consulting the CSE seems difficult to achieve in view of the legal deadlines which, depending on whether or not an expert has been appointed, can extend the duration of such a procedure to one or two months.
In any event, the CSE shall be consulted prior to any major change in working arrangements relating to the general powers of the body. It is thus strongly recommended that staff representatives be involved upstream both at the risk assessment level, with a view to updating the DUER, and when identifying protective and preventive measures.
Furthermore, information and training of the employees on the risks related to Covid-19 for their health should not be neglected, in particular on the precautions to be taken to avoid their exposure or on the wearing and use of personal protective equipment. Likewise, the company must inform the employees, the CSE and the occupational physician without delay in the event of an accident. Note that if Covid-19 is recognised as a "biological pathogenic agent", the employer is required to provide specific information and must draw up, after consulting the occupational physician, a list of workers exposed to the risk, or organise reinforced individual monitoring.
To conclude, the most recent case law should lead employers to prepare the resumption of operations by taking the greatest care in assessing risks and identifying protective measures and organising preventive and protective measures adapted to their situation, and by involving employee representatives in these steps prior to updating the DUER. It is also recommended that the rules of procedure be amended to include these new rules after consultation with the SSC on these changes. Lastly, employees must be made aware of and trained in distancing measures and barrier gestures as well as the use of personal protective equipment. Finally, compliance with these new rules for the organisation of corporate life will have to be monitored regularly, if necessary, so that preventive measures can be amended.
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