The evolution of the health situation resulting from the pandemic requires taking transient organisation measures relating to the functioning of the health services at work, the processing of working time waiver requests, respect for contradictory process in the management of requests and appeals relating to redundancies or the transfer of the employment contract of protected employees. Although emergency law No. 2020-290 of 23 March 2020 to confront the Covid-19 epidemic published on 24 March 2020 in the Official Journal authorises the Government to instigate orders on some of these points, the General Labour Directorate (DGT) has already given instructions to its services.
DGT instruction of 17 March 2020 relating to the functioning of the health at work services during the Covid-19 epidemic
With regard to checks relating to the health of employees, they may, in principle, be postponed unless the works’ doctor considers them to be indispensable. In this regard, a telephone contact initiated by the inter-company health service determines the opportunity and the urgency of the health checks. If the check can be postponed, the company is informed thereof.
However, must be organised : the health checks (excluding periodic checks) of employees exercising an activity necessary for the continuity of the life of the nation This concerns in particular the employees of companies within the sectors of transport, energy, food distribution, logistics (drivers of self-propelling carriages, for example), farming production, farming cooperation (livestock production, arable farming) and all health professionals;
- the employee information and prevention health checks that must take place within a period of three months of hiring;
- the information and prevention health checks concerning night workers and youngsters less than 18 years old which must be carried out before hiring;
- aptitude and return-to-work health checks.
When it is possible in respect of the necessities of the examination and based on the risk to reward ratio and the resources of the service, these health checks may be done by teleconsultation in agreement with the employee concerned. If the health check must take place physically, the company is informed of the precautions to be taken and reminder is given to the employees at the preliminary contact that they will not be seen by the health professional if they present symptoms on arrival.
As for actions in the working environment, they must be postponed to a later date. Only emergency justified situations may lead the works’ doctor to decide on an intervention in the working environment: investigations into an accident at work and decisions relating to the inability to work may not be postponed.
DGT instruction of 16 March 2020 relating to the processing of working time waivers during the crisis period resulting from the Covid-19 pandemic
The pandemic may lead to an increase in activity in certain sectors due to stock shortages and situations of massive absenteeism that may result both from the confinement measures and from the disease. The DGT expects a multiplication in the working time waiver requests, particularly to the maximum working periods and to the daily rest period, the introduction of supplementary night-time working, the introduction of supplementary teams, either to maintain production or a service when part of the personnel is not able to attend their place of work, or to meet an increased production demand.
The DGT modifies the territorial competence rules defined by the DGT instruction 2010/06 of 29 July 2010 for the processing of these specific demands: the competent authority is henceforth that which corresponds to the company’s head office for all the employees concerned, irrespective of their place of work.
This adaptation of the territorial competence rules and of the conditions for assessing waiver requests is limited:
- in time, until 31 August 2020;
- to companies whose business is directly or indirectly impacted by the pandemic, provided that the link is proven.
Thus, the requests communicated by companies to the employment inspectorate and/or to the Direccte (Regional Directorate for Competition, Consumption, Labour and Employment) competent for the head office of the company must contain all the documents provided for by the regulations (probative documents, opinion of the social and economic committee - CSE - concerned where applicable, list of the employees for which the waivers are requested). Moreover, the waivers granted may not exceed the limits provided for by the legislation and must, where applicable, provide for counterparties.
These requests will be processed quickly, within five days, and with discernment in view of the situation of the country, the territory and the sector of activity concerned. The enquiry will be carried out on the documents, contacting the company and the CSE where necessary.
The competent authority will ensure that:
- the request is directly or indirectly motivated by the pandemic linked to the coronavirus. This circumstance characterises an emergency situation and an exceptional case justifying, in principle, the requests for waivers
- the waiver request is limited to positions indispensable to the company’s economic activity;
- the scope and duration of the waiver are defined in relation to the specific case .
Should the request be incomplete, the competent authority must contact the company so that the useful information is provided. The rejection of the request may occur only after the company has been put in a position, by any means, to complete it.
DGT instruction of 17 March 2020 relating to the processing of redundancy authorisation requests or requests to transfer the employment contract of protected employees during the period of crisis linked to the Covid-19 pandemic and to the instruction of hierarchical recourse
The rules in force in terms of contradictory enquiry provide that the employment inspectorate must convene the parties individually to a two-sided enquiry. When the request concerns the individual or collective conventional ending of the employment contract, the transfer of the employment contract or the redundancy for economic reasons of at least 25 protected employees, it is possible not to proceed with the individual hearing of the employee, unless the latter so requests.
In order to take account of the current situation and reduce the risks of contamination, the above rules of two-sided enquiry are adapted:
- the documents produced in support of the request, of the hierarchical recourse and relating to the decisive information gathered during the enquiry may no longer be consulted on the administrative premises but are communicated to the parties concerned by post or electronically;
- the hearing of the parties and of the witnesses may not be done on the administrative premises or in the company, except in the event of entirely exceptional circumstances. The employment inspectorate therefore invites the parties to formulate their written observations. A hearing by video conference may also be envisaged. If this means is chosen, however, the date and the time set should be formally notified in writing (post or e-mail) to both parties.
DGT instruction of 17 March relating to the organisation of the continuity of the activity of the employment inspectorate services
On-site interventions by the employment inspectorate are limited to situations for which an in situ inspection is indispensable in respect of a twin criterion: the urgency and the seriousness of the situation with regard to its potential impact and its significance, in particular for the employee. This is true in particular:
- of enquiries relating to serious or mortal accidents at work;
- of interventions following the exercising of a right to alert in the event of serious and imminent danger, within the framework of article L.4132-4 of the Employment Code or the exercising of their withdrawal right by employees in order to ensure that companies implement appropriate organisation, prevention and protection measures adapted to the exceptional context;
- damage to workers’ physical and psychological well-being or to their dignity (situations of sexual harassment, ill treatment of young workers, etc.);
- damage to fundamental rights (inhuman treatment, insalubrious accommodation, etc.).
The investigation also specifies the conditions for exercising the public service mission of the employment inspectorate in respect of employers and employees. The information service must also be pursued, privileging exchanges by e-mail and by telephone. In this regard, the users are invited to contact a single information number, 0 806 000 126.
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