In accordance with the provisions of Article 11 of Emergency Law No. 2020-290 of 23 March 2020, enacted in light of the Covid-19 epidemic, three orders issued on 25 March 2020 regarding labour law were published on 26 March 2020 in the Official Gazette.
Order No. 2020-323 on emergency measures regarding paid leave, maximum working time and days of rest
This order contains two very different sets of provisions.
Leave and days of rest
Given the economic crisis resulting from the spread of Covid-19, many companies have been forced to reduce or even suspend their activities.
Before resorting to partial unemployment, their first reflex is to ask their employees to take their vacation days.
For this reason, Article 1 of the order provides that a company agreement or, failing that, a collective bargaining agreement, may determine the conditions under which the employer is authorised to decide, over a maximum of up to six days off, and subject to compliance with a notice period of at least one clear day, whether employees should take their vacation days or, alternatively, unilaterally modify their vacation dates. The agreement may also authorize the employer to split an employee's paid leave and not grant simultaneous leave to spouses or partners bound by a PACS agreement (French Civil Solidarity Pact) and working in the same company.
These measures, which have been much debated in Parliament, have a very limited scope:
- they are subject to a collective bargaining agreement, even if it may be an overriding agreement;
- they can be applied on up to six days of leave.
The measures concerning days of rest are much stronger, since they allow the employer to impose days of rest and unilaterally modify previously agreed days of rest:
- conventional days of rest implemented as part of an annualised working time arrangement;
- days of rest provided for by an annualised overtime hours contract.
The employer may also determine the dates of rest days taken on the basis of a time saving account (CET).
The total number of days of rest which the employer may, on condition of respecting a notice period of one clear day, require employees to take, or which the employer may modify in application of these various provisions, is limited to ten days.
The leave or rest period imposed or modified by the employer may not extend beyond December 31, 2020.
Maximum working time and minimum rest period
The reasons for these provisions are very different: they are intended to enable certain companies, in business sectors with an essential role in the security of the country and the continuity of its economic and social life, to extend working time, without being restricted by a maximum working time and minimum rest period. For example, this may be the case for companies that manufacture masks or a drug that can be used against the Coronavirus.
Article 6 of the order thus authorises companies in these business sectors defined by decree to:
- increase the maximum daily working time to 12 hours, instead of ten;
- increase the maximum daily working time for night workers to 12 hours, instead of eight;
- reduce the duration of daily rest to nine consecutive hours, instead of 11;
- increase the maximum weekly working time to 60 hours, instead of 48;
- increase the weekly working time calculated over any period of 12 weeks to 48 hours, instead of 44;
- increase the night worker's weekly working time over a period of 12 consecutive weeks to 44 hours, instead of 40.
For each of the selected business sectors, a decree will specify the derogation categories that may apply and, within the limits set forth in the order, the maximum working time or the minimum rest period which may be set by the employer.
An employer who uses any one of these derogations shall immediately and by any means inform the Social and Economic Committee (CSE) as well as the Regional Directorate of Enterprises, Competition, Consumption, Labour and Employment ("DIRECCTE").
Lastly, Article 7 of the order authorises business sectors that are particularly necessary to the security of the nation and the continuity of its economic and social life, as determined by decree, as well as those companies which provide them with necessary services for the accomplishment of their main activity, to derogate from the rule of Sunday rest. This latter provision, by its lack of precision, borders on the French legal notion of "incompétence négative", by which an institution wrongly fails to exercise the full scope of its powers.
Order No. 2020-322 temporarily adapting the terms and conditions for the allocation of an additional allowance provided for in Article L.1226-1 of the Labour Code and modifying, exceptionally, the deadlines and the terms of payment of sums paid under optional and mandatory profit-sharing
In principle, pursuant to Article L.1226-1 of the Labour Code, employees that take sick days, excluding employees working at home, seasonal employees, intermittent employees and temporary employees, benefit from statutory salary maintenance as long as they meet the following conditions:
- one year seniority on the first day of absence;
- provision to the employer of a medical certificate of work stoppage within 48 hours;
- social security coverage;
- treatment received in France or in another EU or EEA member country.
Article 1 of the order stipulates certain conditions in order to allow employees to benefit equally, regardless of their seniority, for example, so that they may benefit from a work stoppage in the context of the Covid-19 epidemic (employees subject to isolation, eviction or home care measures, parents of children under 16 years of age who are themselves subject to such a measure, and who are, for any of these reasons, unable to continue working), or a work stoppage justified by incapacity for work resulting from illness or accident.
Thus, until 31 August 2020, additional allowances to the daily subsistance allowances provided for in Article L.1226-1 will be paid:
- to employees subject to isolation, eviction or home care measures, or parents of a child under the age of 16 who is himself subject to such a measure, whatever their seniority and the place where they are treated and without having to provide a medical certificate within 48 hours;
- employees on leave justified by incapacity for work resulting from illness or accident, regardless of their seniority.
These measures also apply to homeworkers, seasonal workers, intermittent workers and temporary workers.
In all cases, the employee benefits from the payment of an additional allowance on condition of being covered by social security. In this respect, it should be noted that Article 8 of the Emergency Law in light of the Covid-19 epidemic provides that the payment of daily allowances apples to all work stoppages or leaves beginning as of its publication, from the first day of the stoppage or leave.
A decree may adjust the deadlines and methods of payment of this allowance.
In principle, in application of Articles L.3314-9, L.3324-10 and L.3324-12 of the Labour Code, sums paid under optional and mandatory profit-sharing must be paid to beneficiaries or allocated to an employee savings scheme or a blocked current account before the 1st day of the sixth month following the end of the company's financial year, under penalty of late payment interest.
However, by way of derogation from this rule, the order stipulates that the deadline for payment to beneficiaries or allocation to an employee savings scheme or blocked current account of the amounts allotted in 2020 under optional or mandatory profit-sharing is postponed to 31 December 2020.
Thus, while for companies with an accounting period corresponding to the calendar year, the sums allotted under optional or mandatory profit-sharing for the year 2019 were to be paid before June 1, 2020, this payment may be made as late as 31 December 2020.
Order No. 2020-324 on emergency measures with regard to unemployment benefits mentioned in Article L.5421-2 of the Labour Code
This order stipulates that job seekers who exhaust their rights to unemployment benefits as from 12 March 2020 and until a date fixed by decree no later than 31 July 2020, will benefit from an extension of the payment of their benefit for a fixed period by order of the Minister responsible for employment.
This provision covers:
- job seekers who receive an employment assistance allowance (ARE);
- job seekers who receive the special solidarity allowance paid by the State;
- beneficiaries of the intermittent workers' allowance and other allowances and benefits governed by special schemes, in particular civil servants.
A decree by the Council of State will set a limit not to be exceeded by the extension of the duration of rights.
This order thus makes it possible to extend unemployment insurance rights until the end of the Covid-19 crisis.
Contrary to the requests which have been expressed, it does not, however, negate the tightening of conditions for unemployment insurance (having worked at least six months - i.e. 130 days or 910 hours - over the last 24 months / the last 36 months for those over the age of 53), or the degression of unemployment benefits for high earners (30% reduction as from the seventh month for employees whose gross income exceeds 4,500 euros) provided for by decree No. 2019–797 of 26 July 2019 on the unemployment insurance scheme.
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