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Covid-19: the government agrees to apply short-time working on an individual basis and reduce CSE consultation requirements

Ordinance no. 2020-460 of 22 April 2020

23/04/2020

A second ordinance amending Ordinance no. 2020-346 of 27 March 2020 on emergency measures in relation to short-time working was published in the Official Journal on 23 April 2020. The Council of Ministers had already adopted a first Ordinance no. 2020–428 of 15 April 2020, introducing various employment provisions in view of the Covid-19 epidemic.

The new ordinance, containing significant measures at odds with the previous provisions, is clearly preparing for the lifting of lockdown.

It contains three categories of employment measures relating to short-time working, the CSE (social and economic committee) and industrial accidents and occupational illnesses.

1. The ordinance contains a very important measure contrary to the traditional philosophy of short-time working – the possibility of applying short-time working on an individual basis

This measure has a dual objective:

  • firstly, from 1 May 2020, it will allow employees who are currently signed off work, either to look after their children or because they are considered to be vulnerable, to be switched to short-time working in order to avoid their remuneration being reduced due to the length of time they are away. The government has passed an amendment as part of the amending finance law to give this operation a legislative basis;
  • secondly, this individualisation of short-time working should also allow the measure to be tailored more precisely to businesses’ needs, as part of a strategy of progressively lifting lockdown and gradually resuming activity.

Article 8 of the ordinance provides for two possible tiers of individualisation:

  • either placing only some of the employees of a company, an establishment, a department or a workshop on short-time working, including employees belonging to the same professional category;
  • or applying a different allocation of hours worked and not worked to those employees, when that individual approach is necessary to maintain or resume activity.

Access to these provisions is dependent on significant guarantees:

  • either a company agreement or establishment agreement or, failing that, a branch agreement;
  • or a favourable opinion from the CSE or the works council on the employer’s unilateral decision.

The agreement or document submitted to the CSE must in particular specify the skills identified as being necessary, objective criteria relating to the position, the functions held or the professional qualifications and skills justifying the designation of employees and the methods and frequency of a periodic review of those criteria, the procedures for reconciling professional and personal life and, finally, the procedure for informing employees about application of the agreement or document.

Such an agreement or unilateral decision shall cease to apply on the date fixed by decree, and at the latest on 31 December 2020.

2. Two other measures relating to short-time working

The purpose of article 5 is to ensure that the total sums payable in respect of short-time working and additional allowances paid by the employer are subject to social security contributions applicable to employment income, once those sums exceed 70% of 4.5 times the minimum wage. This article is applicable to allowances relating to periods of employment from 1 May 2020.

Whereas, in principle, the non-worked hours giving entitlement to compensation are the non-worked hours up to the legal working time – or else the collective working time or working time specified in the contract for the period in question, if less – Article 7 stipulates that the reduction in the number of working hours in respect of short-time working is to be assessed in relation to the contractually agreed working time and overtime is to be taken into account to determine the number of non-worked hours to be compensated:

  • for employees who had concluded an individual flat-rate pay agreement including overtime before the ordinance came into force;
  • for employees whose working hours are longer than the legal working hours, under a collective labour agreement concluded before the ordinance came into force.

This rule is also contrary to what previously appeared to be a fundamental principle of short-time working.

3. Amendment of the deadlines for consulting the CSE, including when they are contractually agreed

Article 9 refers to a Council of State decree defining – by way of exception to the applicable contractual provisions if necessary – the deadlines for:

  • consulting and informing the CSE regarding the employer’s decisions regarding how to tackle the economic, financial and social consequences of the spread of the Covid-19 epidemic;
  • the progress of expert appraisals conducted at the request of the CSE when it has been consulted or informed in this case.

These provisions are applicable to deadlines beginning before a date fixed by decree and, at the latest, before 31 December 2020.

4. Measures relating to procedures for recognition of workplace accidents and occupational illnesses

Article 11 sets out the conditions for extending the deadlines granted to employees and employers in relation to the procedure for recognising workplace accidents and occupational illnesses:

  • the victim must declare the workplace accident within 48 hours (rather than 24 hours) and the employer must submit its declaration within five days (rather than 48 hours);
  • a victim seeking compensation for an occupational illness must declare it to the CPAM (primary health insurance fund) within 30 days rather than 15, from the cessation of work;
  • the deadline of 10 full days to issue reservations, starting from the date the employer submits the declaration or receipt of the victim’s declaration, is increased to 12 days;
  • the deadline for responding to questionnaires is extended by 10 days for workplace accidents and occupational illnesses and five days for relapses and new injuries;
  • the deadline for making the file available in relation to the procedure for recognising occupational illnesses is extended by 20 days;
  • in the framework of procedures for recognising workplace accidents and occupational illnesses, the deadline for the CPAM to decide to initiate additional investigations or rule on the professional nature of the accident or illness is extended to a date fixed by ministerial decree, and no later than 1 October 2020;
  • within the framework of the procedure for recognising workplace accidents and occupational illnesses, the employee and the employer can produce exhibits which were not included in the file when the documents were consulted. In that case, a further consultation must be organised for the parties, under the conditions set out in applicable regulations, before the CPAM makes its decision within the relevant deadlines.

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