Since the World Health Organization (WHO) has declared the coronavirus outbreak to be “a global public health emergency”, employers must prepare for it, particularly if any of their employees have recently travelled to Asia for personal or professional reasons or have been in contact with people returning from Asia.
Under French labour law, employers’ safety obligations include taking immediate measures to ensure the safety and protect the physical and mental health of its employees (through prevention, information, training, etc.). In this regard, the company should refer to its business continuity plan (BCP), if one exists, and/or plan prevention measures for the future in order to have an action plan in the event of any further health emergencies.
The purpose of the BCP is to analyse the main impacts of a crisis, such as an epidemic, on the company’s usual activity. It allows the company to identify and prioritise in advance the actions to be carried out under all circumstances and to assess the resources and procedures required for employees to continue to carry out their activities.
In the absence of such a plan, and where there is a threat of an epidemic, what measures can or should employers consider and how should they implement them?
Dealing with the situation of staff serving in the affected areas
First of all, it is worth noting that expatriate employees were able to register with the French consulate. This step ensures that in the event of a serious problem of any kind, French authorities can identify them and provide them with assistance appropriate to the situation in the country concerned. Employers who have posted employees to the affected areas should therefore check that those employees have taken this step.
In addition, French companies that have sent employees on assignment in the affected areas may be tempted to initiate their repatriation.
From a practical perspective, this solution is not easy to implement since it will depend on the conditions under which the employee was sent on assignement.
When the assignment abroad is carried out under a mobility clause in the employee’s employment contract, the latter’s repatriation is falls under the management authority of the employer. Therefore, if the employer requests it, subject to a notice period where applicable, it will be deemed as a simple change in working conditions which cannot be refused by the employee without committing a misconduct.
However, when the assignment abroad has entailed the conclusion of an addendum to the employment contract defining its duration, the repatriation decision can be considered as an amendment to the employment contract, which the employer can only implement with the employee's agreement. If the employee were to refuse to be repatriated, the employer could not impose any disciplinary measure for that refusal. In this circumstance, the employer’s safety obligation means that it must continue to ensure that employee(s) who have refused repatriation benefit from individual equipment necessary for their protection.
Furthermore, some employees who have been posted to an affected area could ask for their repatriation. If the employer rejects their demand, the employees concerned may probably use their right of withdrawal (the so-called “droit de retrait”) to stop performing their duties, after warning their employer, on the basis that their working conditions present a serious and imminent threat to their life or health.
While no sanctions or deduction can be imposed on an employee who has lawfully use its right, the situation would be different if the employer could demonstrate abuse of this right, notably by showing that he has taken all the necessary preventive measures and applied any national recommendations.
The necessary preventive measures must therefore be taken by the employer if it wishes its posted employees to remain in the affected areas.
Adjusting working conditions to limit the spread of the epidemic within the company
Companies with offices in France must also handle the situation of employees who return to France after having spent the last few weeks, for personal or professional reasons, in the area now under quarantine, as well as employees who declare having been in contact with individuals likely to be infected.
The employer must, at the very least, because of its safety obligation, take strict preventive measures vis-à-vis all employees, providing them with the individual equipment necessary to protect their health (masks, hydro-alcoholic solutions, etc.) given a particular risk within the workplace.
The employer might also ask the employees concerned to work from home, whenever it is possible in view of their responsibilities.
French Labour Code specifies that in exceptional circumstances, particularly when there is the threat of an epidemic or in the event of force majeure, teleworking may be considered to be a workplace adjustment required in order to ensure continuity of the company’s activity and guarantee employees’ protection.
However, it should be noted that infections linked to coronavirus have so far mainly been recorded in a number of Chinese provinces. It is therefore uncertain whether the current situation in France could meet the definition of “threat of an epidemic”. In the absence of a more detailed definition or a statement from the French Government, it would be more cautious to set up telework with the prior agreement of the employee(s) concerned.
It would also require the employer providing the employees concerned with the IT equipment or electronic communication services required to carry out their duties.
The employer may also grant an exemption from work to potentially infected employees, particularly if they exhibit symptoms, pending the employee’s medical leave. This decision may be motivated by the obligation to prevent and protect the health and safety of other employees. However, in the absence of medical leave of the employees concerned, the employer will have to bear the cost of the wages.
The French Social Security Code states in this respect that when justified by the protection of public health, in the event of a serious and exceptional health risk, particularly an epidemic, a decree may temporarily provide a right to daily social security allowances under conditions derogating from common law. This is stipulated in a 31 January 2020 decree in favour of insured parties who, in respect of medical leave, are isolated, evicted or restricted to their home and unable to come to the workplace. The benefit of daily allowances is limited to 20 days. Only employees identified by the regional health agencies (the so-called “ARS – agences régionales de santé”) can benefit from this measure once the ARS doctor has issued a work interruption notice.
In order to restrict the impact of these absences on the company's activity, the employer could particularly replace those employees with temporary workers or employees recruited on fixed-term employment contracts. The use of overtime might also be considered.
Planning prevention to limit the impact of a health crisis on the company’s operation
To limit the impact of a health crisis on the company’s operation and ensure the continuity of its activity while protecting the health and safety of its employees, companies with offices in France may be forced to review the work organisation.
Reference should be made to the BCP, where applicable, in order to organise the carrying on of their business by the employees.
Otherwise, it may be useful to implement prevention and awareness-raising actions by involving the occupational physician.
The employee representative bodies must be consulted on the measures proposed by the employer, if they fall within the scope of their responsibilities.
It may also be appropriate to adapt for the future the single risk assessment document (the so-called “document unique d’évaluation des risques”), which lists all the risks for the health and safety of staff in the workplace, to cover new risks generated by a health crisis.
For instance, by way of prevention and based on an assessment of the risk of exposure specific to each employee's workstation, the employer may define conditions under which personal protective equipment (masks, hydroalcoholic solutions, etc.) are made available and used (duration, wearing, etc.).
These measures will therefore provide a plan for identifying at-risk positions and emergency actions to be implemented in the present situation as well as in the event of a future epidemic.
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