The French Labour Code requires employers to ensure the health and safety of their employees. Initially conceived as an obligation of result, in recent years the safety obligation incumbent on the employer has become a reinforced obligation of means. Compliance with this obligation takes various forms, including the creation and updating of the so-called DUER (central risk assessment document).
Reminder of applicable rules
All employers must create and regularly update their DUER, listing all identified health and safety risks to employees in the company as well as occupational risk factors.
Although it is the employer's responsibility, preparation of the risk assessment must draw on a range of skills (technical, medical and even organisational). Participants may therefore include the occupational doctor, members of the works council (social and economic committee), employees and even service providers.
This risk assessment must be comprehensive, exhaustive and based on employees’ actual work.
In order to remove or reduce the risks assessed, an action plan is set up in order to determine the most appropriate control actions. These measures include occupational risk prevention actions, information and training actions, as well as the establishment of appropriate organisation and resources (Article L.4121-1 of the French Labour Code).
The employer must ensure that these measures are adapted to take into account changing circumstances and designed to improve existing situations. The risk assessment must therefore be carried out throughout the year, in order to be part of a continuous improvement approach to workers’ health and safety.
Finally, the DUER must be made available to employees, the CSE, the occupational doctor and the French labour inspectorate.
The DUER and Covid-19
While Covid-19 has forced a number of companies to temporarily suspend their activities, many have either had to scale back their operations or ensure business continuity despite a reduction in their workforce. Furthermore, all companies now need to plan how they will resume their activities when lockdown is lifted.
In view of the pandemic, employers must therefore consider ways to reduce, if not prevent, the risks faced by their employees.
This is what the French Labour Ministry emphasises in its Q&A, which states that the assessment of occupational risks must be updated in light of the pandemic, to minimise the risk of contagion in the workplace or while working by adopting measures such as prevention, information and training actions, as well as the establishment of appropriate resources, in accordance with instructions issued by public authorities.
Although employers are responsible for assessing risk and updating the DUER, the French Labour Ministry’s Q&A recalls the need to involve employee representative bodies and the occupational doctor in this procedure.
Preparation of guides in certain sectors
Given the unprecedented situation facing businesses, guides have been published by the French Labour Ministry.
These guides, including practical recommendations broken down by business sector and by profession, have been published in order to continue operating, while protecting employees’ health, in the following sectors:
- in the field of agriculture, livestock and agri-food, guidelines have been prepared for agricultural activities, agricultural worksites, seasonal work, work with livestock and work in abattoirs;
- in the retail, catering and hotel trades, guidelines have been drawn up for working on tills, in retail outlets and bakeries, in collective catering or take-out sales and in hotels, including housekeepers and hotel porters, receptionists and night porters;
- for “other services”, guidelines have been prepared for maintenance agents, call-centre operators, delivery drivers, security agents, breakdown services – home response and plumbers – and for sanitary installers, industrial laundry work, garage work, work in the collection of household waste, work in green spaces, etc.
The Labour Ministry has also developed a guide for employers and employees in cash transportation companies, as well as a health and safety guide for the continuation of construction activities during the Covid-19 pandemic and, finally, a guide dedicated to timber companies and the timber industry.
Even though these guides and guidelines have been developed for specific professions or sectors, they are equally relevant to any employer in order to identify risks and draw inspiration from practical recommendations that can be duplicated in other sectors.
DUER and legal penalties
Any company that fails to comply with this obligation could be prosecuted.
Any absence or omission in updating the DUER is punishable by a maximum fine of €1,500 or €3,000 for a second offence within one year from the expiry or time-barring of the first (Articles R.4741-1 of the French Labour Code), it being specified that the maximum level of the fine applicable to companies is equal to five times those previously mentioned (Article 131-41 of the French Criminal Code).
Recent court judgements indicate that the DUER is becoming an increasingly important concern.
On 9 April 2020, for instance, in a case brought by SUD-PTT trade union, the Paris court of justice ordered La Poste to draw up a DUER taking into account Covid-19.
Similarly, on 14 April 2020 Amazon was ordered by the Nanterre court of justice to limit its activity to essential goods (hygiene, medical, food) within 24 hours, subject to a penalty of €1 million per offence and per day of delay in compliance, pending an assessment of the risks associated with the Covid-19 epidemic and the measures taken to protect its employees, and to involve employee representatives in that assessment.
In this context, employers are strongly encouraged to look into updating the DUER in order to identify and implement all practical and necessary measures to protect employees’ health. With the easing of lockdown announced for 11 May, now is the time to think about it and prepare for a resumption of activity under the best possible conditions.
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