Home / News / Switch from exceptional absence from work to short-time...

Switch from exceptional absence from work to short-time working

A scheme that remains unclear

28/05/2020

In order to tackle the Covid-19 health crisis, the government has extended the benefit of absence from work to non-infected persons, enabling them to receive social security compensation in this respect and to be paid a salary top-up by their employer. Since 1 May 2020, in order to prevent these employees suffering a fall in remuneration, as well as to protect health insurance financing, some – but not all – of these exceptional absences from work are now covered by short-time working. This switch, which requires action by the employer, poses practical difficulties.

Who is affected by the switch?

The following are covered by the switch to short-time working:

  • employees considered to be “vulnerable persons”, i.e. those at high risk of developing a serious form of SARS-Co V-2 (Covid-19) infection, a list of whom is now defined by decree (no. 2020-521 of 5 May 2020);
  • employees in the same household as a vulnerable person;
  • employees, parents of a child under the age of 16 or a disabled person subject to an isolation, exclusion for infection or stay-at-home order.

It should be noted that the exceptional absences from work imposed in the framework of the health crisis on employees who have been in “close contact” with a person suffering from Covid-19, such as absences from work due to incapacity under ordinary legislation (person infected by Covid-19 or suspected of being infected), are not affected by this switch and will continue to be compensated by the CPAM (primary health insurance fund) and, where applicable, by their employer.

The same applies to non-salaried workers (self-employed workers, non-agricultural workers, authors, vocational trainees, company directors covered by the general scheme pursuant to Article L. 311-3 of the French Social Security Code) who continue to benefit from the previous scheme.

What steps does the employee need to take?

In principle, the switch to short-time working is automatic for all employees who meet the eligibility conditions. However, according to the Ministry of Labour’s Q&A on the short-time working scheme (question 17, p. 26), this measure is not automatic and requires employees to provide, as the case may be:

  • a sworn attestation certifying the need to stay at home to provide childcare;
  • or an isolation certificate, issued by the health insurer for vulnerable employees who have self-reported on the platform and who are still off work on 30 April, or else drawn up by a GP or occupational doctor for other vulnerable employees or employees in the same household as a vulnerable person. GPs also need to fully understand the various schemes introduced in relation to Covid-19 in order to issue the appropriate document.

What should the employer do?

As of 30 April 2020, the payment of daily social security benefits ceased automatically for employees absent from work on childcare grounds or as a vulnerable person. For absences imposed after that date, the employer had to submit an early return to work notification via the individual social security declaration (DSN – déclaration sociale nominative).

From 1 May 2020, in the case of isolation certificates or certificates of absence on childcare grounds, the employer must make a short-time working declaration for the employees concerned, even if the company’s activity is not affected by the current health crisis and it has not requested the benefit of the short-time working for its other employees. The legal conditions for implementing short-time working (closure of the establishment or reduction in activity) are therefore not required in order to place those employees on short-time working and prior consultation of the social and economic committee (CSE – comité social et économique) is not necessary according to the authorities.

This declaration must be made online on the dedicated “short-time working” website within 30 days of 1 May. However, this raises practical problems since the site configuration has not been modified to provide for the possibility of filing a simple short-time working declaration for employees who have benefited up until then from exceptional absences from work. As the scheme stands, and even though no authorisation is required in this case since their cover in respect of short-time working is automatic, those employees must therefore be the subject of a short-time working claim.

Therefore, in the absence of specific provisions:

  • for companies that already benefit from short-time working, a distinction should be made between two scenarios: either their initial claim already provides for a volume of hours and a number of employees allowing employees on exceptional absence from work to be included and, in that case, the company simply makes a compensation claim for those employees for the month in question; or else the initial claim does not allow those employees’ hours of absence to be included, in which case, the company must create an addendum to its initial claim to include employees on exceptional absence from work;
  • for companies that have not so far made use of short-time working, an account must be created and a claim submitted on the dedicated short-time working website.

In addition, the employer must inform the employees concerned of their switch to short-time working.

What compensation for the employee? And for the employer?

Those employees placed on short-time working benefit from compensation under ordinary short-time working legislation. They are therefore compensated for 70% of their previous gross remuneration (i.e. on average, 84% of their net salary).

The employer, meanwhile, benefits in relation to its employees placed on a short-time working from an allowance corresponding to 70% of the employee’s previous gross remuneration, up to a limit of 70% of 4.5 times the national minimum wage. However, the amount of that allowance is likely to change over the coming months.

What future for these schemes?

These new provisions shall apply from 1 May for varying periods depending on their purpose.

For employees considered to be vulnerable, for instance, as well as employees in the same household as a vulnerable person, until a date to be defined by decree and no later than 31 December 2020.

We note that, to date, occupational doctors are only entitled to sign those employees off from work during the period from 13 to 31 May 2020.

For employees, parents of a child under the age of 16 or a disabled person subject to an isolation, exclusion for infection or stay-at-home order, those provisions apply until their child’s isolation, exclusion for infection or stay-at-home order expires. It is not yet clear what circumstances will be required for the measure to be withdrawn. In principle, it should be the reopening of schools, specialist institutions and childcare facilities. But we are seeing that these are reopening only gradually and only accepting a small number of children. The Prime Minister Edward Philippe confirmed at the beginning of the week that parents of children unable to return to school for health reasons may continue to benefit from the short-time working provisions after 2 June.

In this regard, the Ministry of Labour considers that it is possible to alternate periods of short-time working on childcare grounds with periods of work depending on the conditions applicable to school re-openings. The employee must submit a sworn attestation to the employer certifying the need to stay at home to provide childcare (for certain days only if applicable) and placement on short-time working is then automatic for the relevant days if teleworking is impossible. According to the authorities, when claiming compensation, the employer must specify the number of days claimed for the employees concerned.


Report: impacts of Covid-19 (Coronavirus)

Our law firm offers you its legal assistance to address all the impacts of Covid-19 (Coronavirus) on your business. Read our dedicated report below.

coronavirus insight 800x300 anglais

For more information on our law firm:

Our law firm is a leading international business law firm. Its deep roots, unique positioning and highly recognised expertise enables it to deliver innovative, high value-added solutions in all areas of the law.

cabinet avocats CMS en France

About our Law Firm in France

expertise droit du travail - employment law 330x220

Expertise: Employment

contact us 330x220

Contact us

Related people

Picture of Emilie Bourguignon
Emilie Bourguignon
Counsel
Paris
Béatrice Taillardat-Pietri
Adjoint du responsable de la doctrine sociale
Paris