Three new decrees, published in the Official Journal on 6 May 2020, provide clarifications on the recipients of daily social security benefits in the event of an exceptional work stoppage, based on criteria making it possible to identify vulnerable persons eligible in this respect for partial activity, and finally, on the modalities for calculating the benefit and the partial activity allocation for certain categories of employees (particularly independent workers and executives/managers).
Decree No. 2020-520 of 05 May 2020 amending Decree No. 2020-73 of 31 January 2020 adopting adapted conditions for receiving cash benefits for persons exposed to the coronavirus.
Article 20 of the 2020 Corrective Finance Act No. 2020-473 of 25 April 2020 provides for switching certain categories of employees previously under exceptional work stoppage to partial activity starting 1st May 2020.
Issued in application of that provision, this decree amends the text of the Decree of 31 January 2020 and specifies that private law employees can no longer claim the payment of daily social security benefits if they are unable to continue to work for one of the following reasons:
- The employee is a vulnerable person at risk for developing a severe form of Covid-19 infection, according to the criteria specified by the regulations (see below);
- The employee shares the same home as a vulnerable person as identified above;
- The employee is the parent of a child under the age of 16 or a disabled person subject to an isolation, school suspension for infection, or stay-at-home order.
This measure applies to work stoppages for one of these reasons in effect as of 1st May 2020, regardless of the work stoppage start date.
However, employees who have been in contact with a person contaminated by Covid-19 are not concerned by this switch in the partial activity regime and will continue to benefit from an exceptional work stoppage until 31 May 2020. Such employees, as well as those out of work for an illness that may or may not be associated with Covid-19, will remain compensated under the conditions in effect before 1st May 2020.
Non-salaried workers who may not be placed on partial activity may also continue to benefit from this exceptional work stoppage regime (independent workers, non-salaried agricultural workers, artists/authors, interns, company managers, etc.).
Decree No. 2020-521 of 5 May 2020 specifying the criteria for identifying vulnerable employees at risk for developing a severe form of the SARS-CoV2 virus infection and who may be placed on partial activity under Article 20 of the 2020 Corrective Finance Act No. 2020-473 of 25 April 2020
This decree establishes the non-cumulative criteria to help identify vulnerable persons who may benefit from being placed on partial activity starting 1st May 2020 in accordance with Article 20 of the 2020 Corrective Finance Act.
Thus, it targets employees:
1° over the age of 65;
2° with cardiovascular histories: arterial hypertension with cardiac, renal, and cerebral-vascular complications, history of stroke or coronary artery disease, cardiac surgery, NYHA class III or IV heart failure;
3° with uncontrolled diabetes or diabetic complications;
4° with a chronic respiratory disease susceptible of decompensating during a viral infection (particularly chronic obstructive pulmonary disease, severe asthma, pulmonary fibrosis, sleep apnoea, cystic fibrosis);
5° with chronic kidney failure and on dialysis;
6° with active cancer under treatment (excluding hormone therapy);
7° who are obese (body mass index - BMI > 30);
8° with congenital or acquired immunodepression: drug-induced (chemotherapy cancer treatment, immunosuppressors, biologic and/or corticosteroid therapy at immunosuppressive doses), uncontrolled HIV infection or with CD4 < 200, following a solid organ transplant or haematopoietic stem cell transplant, or associated with a malignant blood disorder under treatment;
9° afflicted with cirrhosis, with a Child-Pugh score of at least Stage B;
10° having major cycle-cell anaemia or with a history of splenectomy;
11° in the third trimester of pregnancy.
Such provisions apply starting 1st May 2020, regardless of the work stoppage start date for the employee concerned.
As a reminder, in order to be placed on partial activity, such employees must provide their employer with a certificate stating their need to isolate and their resulting inability to go to the workplace. To the extent possible, the certificate should have been sent before 1st May 2020. The certificate is issued:
- by the primary health insurance fund for employees who self-declare on the dedicated platform on the ameli.fr website (employees afflicted with a long-term condition on the health insurance list or pregnant women in the third trimester of their pregnancy). In such a case, the certificate is sent by the fund without the employee needing to take any other steps;
- By a physician for other employees identified as vulnerable. The employee must then ask the physician to issue the certificate.
Decree No. 2020-522 of 5 May 2020 supplementing Decree No. 2020-435 of 16 April 2020 establishing emergency partial activity measures
Ordinance No. 2020-428 of 15 April 2020 opened up partial activity to executives-managers when it results in the temporary closure of all or part of their establishment. This decree supplements Decree No. 2020-435 of 16 April 2020 establishing emergency partial activity measures specifying, in this case, the terms of calculating their compensation:
- The reference monthly compensation used to calculate the partial activity benefit and allocation is equal to the average of the gross compensation received over the past 12 calendar months preceding the company or establishment being placed on partial activity, or all calendar months worked if the employee has worked for less than 12 months before being placed on partial activity;
- The hourly compensation rate of the allocation is determined by dividing the gross compensation by 30 days, then by 7 hours, representing one work day;
- The partial activity benefit and allocation are determined by taking into account the number of business hours or days (or half days, as applicable) not worked by the employee for the period in question converted to hours according to the following modalities: 3.5 hours for an unworked half-day, 7 hours for an unworked full day, 35 hours for an unworked week.
The same Ordinance opened up access to partial activity for independent employees under an open-ended employment contract for periods without service to a client company. In this case:
- The number of compensable days corresponds, within the limit of the statutory work week/day for the period in question, to the monthly average of hours or days worked over 12 calendar months, or all months worked if the employee has worked less than 12 calendar months prior to the host company being placed on partial activity. One day worked corresponds to 7 hours worked;
- The reference monthly compensation used to calculate the partial activity benefit and allocation correspond to 75% of the monthly social security cap for a full-time equivalent activity. When the monthly average hours worked is less than a full-time activity, this compensation is corrected in proportion to the monthly average hours worked, in relation to the statutory work day/week.
- The hourly amount used to calculate the benefit and allocation is determined by comparing the reference monthly compensation amount thus obtained to the average monthly hours worked.
This new legislation also provides clarifications on calculating the partial activity benefit and allocation for flight crews.
These provisions took effect on 6 May 2020.
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