1. Could your business face criminal (or administrative) liability for exposure or risk of exposure to COVID-19 to (1) staff or (2) business partners and the public, under existing laws or new measures to combat the virus?
Businesses covered by emergency coronavirus legislation that are required to close during the pandemic can be criminally liable for failing to comply with the restrictions. All businesses, whether covered by the emergency legislation or not, must comply with existing health and safety laws and regulations. Breach of those requirements also carry criminal liability as explained below.
Law No. 2020-290 of 23 March 2020 declaring public health emergency
Business closure and restriction rules
Law No. 2020-290 of 23 March 2020 declared COVID-19 a public health emergency and addressed various health and business issues arising from the epidemic and subsequent lockdowns. During the state of public health emergency, the Prime Minister was (and is), relying on the report of the Minister in charge of Health, authorised by regulatory decree to take specific measures for the sole purpose of guaranteeing public health, inter alia:
- restriction of the freedom of movement;
- lockdowns and quarantine;
- control of the prices of some necessary products;
- limitations of gatherings in public places;
- temporary closure of certain businesses open to the public, except those that offer essential goods and services;
- requisition of goods and services necessary to address the health disaster; and
- any measure to provide medicine and drugs necessary to eradicate the virus.
Penalties and sanctions for non-compliance with the police decrees and orders passed have, since the declaration of the public health emergency, increased.
Failure to comply with requisitions for goods and services (such as masks) or care staff is heavily punished, with six months' imprisonment and a fine of EUR 10,000. Apart from these requisitions, the violation of other prohibitions or obligations is graduated, with a fine of EUR 135, rising to EUR 375 if the fine is increased and could, in case of repeated offences, lead to six months' imprisonment and a fine of EUR 3,750. As regards legal entities, the amount of the fines is increased by five times.
Notwithstanding the above, the principal new criminal offence created since the beginning of the Covid-19 epidemic in France relates to the prohibition of movements outside home, with the need to certify the exceptions listed exhaustively (e.g. the purchase of professional and essential supplies). Committing this offence may lead to a EUR 135 fine, but this does not apply to companies asking their employees to come to work. A company that asks its employees to come to work needs to issue a special certificate to authorise the employee to move from home during the lockdown period.
Thus, criminal liability for exposure or risk of exposure to COVID-19 must be considered essentially on the basis of general French criminal law rules and principles.
General French Criminal Law Rules and Principles
Several offences already exist and could be applicable to exposure or risk of exposure to COVID-19:
- Unintentional homicide or injury (articles 221-6, 121-3 and 222-19 of the French Criminal Code).
- Reckless endangerment (article 223-1 of the French Criminal Code).
- Failure to provide for assistance (article 223-6, al. 2 of the French Criminal Code).
- Intentional abstention (article 223-7 of the French Criminal Code).
- Employer’s duty of care (articles L.4121-1 and L.4741-1 of the French Labour Law Code).
Except for unintentional homicide or injury, these offences do not require an actual injury to the plaintiff. Consequently, they could ground claims for exposure or risk of exposure, even if the victim has not been ill or did not suffer any damage.
Pursuant to article 121-3 of the French Criminal Code, there is no crime or offence without intent to commit it, but where the law so provides, cases of deliberate endangerment of another person may trigger criminal liability. If it is established that the perpetrator did not take due care, having regard, where appropriate, to the nature of his/her duties or functions, his/her competence and the power and means at his/her disposal, criminal liability may arise. For example, where the law so provides, in the event of imprudence, negligence or failure to comply with an obligation of prudence or safety laid down by law or regulation.
As regards legal entities, they are liable for offences committed on their behalf by their organs or representatives. Such liability does not exclude the criminal liability of individuals who are perpetrators or accomplices in the same acts, but as regards individuals, the fault is qualified as follows : Individuals who did not directly cause the damage, but who created or contributed to the creation of the situation that made the damage possible or who did not take the measures to avoid it, shall be criminally liable if it is established that they either manifestly deliberately violated a particular obligation of prudence or safety provided for by law or regulation, or committed a serious fault that exposed others to a risk of particular gravity that they could not ignore. The concept of serious fault is defined by case law.
Potentially, the guidelines published by the Labour Ministry for employers and employees could qualify as a regulation imposing an obligation of prudence or security. and, depending on the circumstances, non-compliance could constitute a fault of negligence and therefore lead to the wrongful conduct being punishable.
To prevent, as far as possible, prosecution on any of these grounds, businesses have to implement at least all national guidelines towards staff, business partners and public.
An employer must be vigilant, as the French Labour Code requires preventing biological risks in the workplace, which can be the source of infectious or allergic risks. The criminal liability of the company or its representatives may therefore be incurred, if it is shown that the employer has violated a "particular duty of care or safety imposed by law or regulation". In order to slow down the spread of the virus, general provisions, which apply to all businesses and individuals, envisaging "measures of hygiene and social distancing, known as ’barriers’, defined at the national level, [which] must be observed in all places and in all circumstances" (Decree No. 2020-293, art. 2).
The Labour Ministry published notes to assist employees and employers in the implementation of protective measures against COVID-19 in the workplace.
2. Could senior management or other company representatives face criminal or other liability for any such exposure or risk of exposure?
Responsibility for compliance relies with the company and its management.
The liability of a legal entity may arise out of offences committed by its corporate officers such as the board of directors or the supervisory board, or individual legal representatives. The individual representatives include individuals such as: (i) directors, managers, general managers and presidents, who are vested, by the law or the articles of association, with the power to manage and control the entity; (ii) de facto directors or managers; or also persons, vested with delegation of powers (including employees) or acting within a specific mission for the company (such as liquidators).
Delegations of powers granted within French companies in matters of, for instance, health and safety, allow in certain cases company management to be discharged from liability, if it can be demonstrated that the delegation was addressed to an employee having at the same time the competence, means and authority necessary to effectively satisfy the regulatory requirements. The same authority may not be delegated to several persons. In the COVID-19 context, French courts will certainly be extremely demanding in assessing whether the conditions for a valid delegation are satisfied. It will be difficult for a French company’s management to successfully argue a valid delegation of health and safety liability in the event of a proven failure to comply with the measures designed to prevent the spread of COVID-19, particularly if management has not clearly stated that dealing with the health and safety constraints is top priority and dedicated appropriate means to that end. Accordingly, despite the series of challenges management needs to face, a delegation with documented and strict compliance with the legal requirements remains an advisable mechanism to address day to day liability for health and safety compliance matters.
In order for this delegation of powers to be fully effective and result in the transfer of criminal liability from the manager to the employee, the manager must not take any personal part in the commission of the offence. Otherwise, the criminal liability would again apply.
As regards COVID-19, as stated above, there are essentially five criminal offences for which senior management or other company representatives or the delegate may be charged being (i) unintentional homicide or injury (articles 221-6, 121-3 and 222-19 of the French Criminal Code), (ii) reckless endangerment (article 223-1 of the French Criminal Code), (iii) failure to provide for assistance (article 223-6, al. 2 of the French Criminal Code), (iv) intentional abstention (article 223-7 of the French Criminal Code) and (v) employer’s duty of care (articles L.4121-1 and L.4741-1 of the French Labour Law Code).
Within the company, the employer is in fact required to take the necessary measures to ensure the safety, and protect the physical and mental health, of its employees (Article L. 4121-1 of the French Labour Law Code).
More generally, it is also incumbent upon the employer to protect the health of persons connected with his/her company, in particular those who may visit its premises (customers, external service providers, etc.).
In this context, since the beginning of the COVID-19 pandemic, companies have been reminded of several obligations to ensure the health of people, including in particular to:
- carry out a re-evaluation of professional risk;
- use teleworking for all positions that allow it and for all employees at risk (in particular people over 70 years old, those with a cardiovascular history, diabetics, or pregnant women from the third month of pregnancy);
- set up an appropriate work organisation that respects the rules of social distance and takes into account specific work situations such as those of employees in contact with the public;
- provide appropriate equipment to protect the health and safety of employees, such as masks and hydroalcoholic gel;
- draw up an action plan in the event of contamination or suspected contamination of an employee;
- inform and remind personnel in particular of the barrier actions to be taken to prevent the spread of COVID-19.
The rules of protection, as provided by the French Labour Ministry in its guidelines, are thus, in practice, very numerous. Failure to comply with any of them could expose senior management, other company representatives, or the delegate to criminal prosecution, whether the damage has occurred (in cases of unintentional homicide or unintentional injury) or not (in cases of reckless endangerment, failure to provide for assistance, intentional abstention, and employer's duty of care).Every senior manager, other company representatives, or employee with validly delegated authority must therefore be particularly vigilant in complying with these rules designed to protect against Covid-19.
As always for this type of offence, the criminal courts, should they become involved, will carry out an in concreto assessment on a case-by-case basis, to determine whether safety standards were put in place in the company, whether they were sufficient in view of their specificities, and the reasons why they may not have been respected.
3. What are the potential penalties for (1) the business and (2) its management?
Penalties for the considered offences may, as regards legal entities, be fines of up to EUR 375,000, and for individuals (e.g. management), inter alia, fines of up to EUR 75,000 and imprisonment.
4. Have prosecutors or regulators brought any cases so far?
There is no doubt that the above offences will strongly be debated in front of French Courts in the next months and years. The causal link, between the alleged action/inaction and its consequences (exposure or risk of exposure), will be at the core of the legal discussions.
One of the first decisions in this context in France is the Amazon decision of the Court of Appeal of 24 April 2020, which stated:
(Translation for information only) "Amazon did not take sufficient measures to protect the health of employees at the entrance to the sites (revolving gantry), in the changing rooms, during interventions by outside companies, when handling packages and with regard to the necessary social distancing. Although alerted by the representative trade unions and the labour inspectors, the company management took measures on a day-to-day basis, without a controlled overall plan as required given the very large number of staff present on each site, the mass movements during staff rotations when each department was taken on (...) and the intervention of outside companies, in particular road hauliers".
The French Amazon case was purely civil, relating to the mandatory documentation showing a company has evaluated the risks and listed means to contain the risks to staff. Nevertheless, it clearly showed how judges will adapt existing laws to examine businesses’ liability towards employees, business partners and the public.
Thus, proof will be crucial in case of trial.
Businesses must keep proof of all recommendations and processes applied/sent/displayed on site. Evidence of orders of protective equipment (such as masks and hydro-alcoholic gel) would also be helpful to prove the measures taken to fight against the propagation of COVID-19 and protect staff.
Lastly, in addition to individual criminal action, companies need to consider that labour inspectors are empowered to report facts to the Prosecutor, who then may decide to prosecute.
At the date hereof, we are not aware of prosecutions of businesses or management on the abovementioned grounds.
However, we know for certain that hundreds of criminal complaints have been filed, either against the French State or public institutions (e.g. hospitals), and against private businesses (such as retirement homes). Websites, such as https://plaintecovid.fr/, offer forms to fill in to file a criminal complaint.
The number of criminal complaints is expected to increase from 11 May 2020, when people will be requested to go back to work even though at that date, employers might not all be ready to implement all protective measures, and/or means of transport from home to work might not be compliant with the protective measures.
5. Are there any specific measures mandated for companies continuing to operate during the pandemic, and for those who may wish to resume operations so far as the control of exposure to staff, business partners and/or the general public is concerned?
As mentioned above, the French Labour Ministry has by now published about fifty “professional guides", whether general, for all businesses, or, specific, to certain industries and sectors (https://travail-emploi.gouv.fr/le-ministere-en-action/coronavirus-covid-19/proteger-les-travailleurs/article/fiches-conseils-metiers-et-guides-pour-les-salaries-et-les-employeurs). These guides already apply to companies continuing to operate and will apply to those resuming operations.
In parallel, the Labour Ministry has drawn up a "national deconfinement protocol for companies" which specifies the general doctrine of collective protection that employers in the private sector must put in place (https://travail-emploi.gouv.fr/IMG/pdf/protocole-national-de-deconfinement.pdf).
6. What potential liability could there be for civil claims by (1) staff and (2) business partners or members of the public in respect of infection (or other health issues) allegedly connected with a business’ operations during lockdown or in the aftermath?How might liability arise? Could companies face class-actions/ group claims?
Claims by staff relating to unsafe working conditions
The French Labour Ministry published on 20 April 2020 a series of recommendations as regards “safety and health of workers: the general obligations and responsibility of the employer” specifying that “within the framework of COVID-19, the necessary measures are those determined by the Government, in particular the measures taken to respect barrier gestures and rules of distancing.” The Labour Ministry reminds that by law, "the employer must take the necessary measures to ensure the safety and physical and mental health of workers. These measures include actions to prevent occupational risks, information and training, and the establishment of an appropriate organisation and means" and the business must ensure that "these measures are adapted to take account of changing circumstances and aim to improve existing situations".
In the event of a pandemic, the employer's liability is assessed on a case-by-case basis, based on several criteria including the nature of the employee's activities and his or her level of exposure to risks, the skills and experience of the person concerned, the extent of the measures taken by the employer (particularly in terms of training and information), work organisation, and instructions issued by management. These measures must, where necessary, be updated in light of any developments in the undertaking and also in light of any instructions from the public authorities.
Claims by members of the public
Such claims may be founded on the general civil liability principles (articles 1240 et seq. French Civil Code) where members of the public were subjected to unsafe conditions. This is a particular concern for businesses that provide in-person services, such as entertainment venues, hospitality, transport, leisure and tourism.
In addition, from a corporate liability perspective, the Law 2017-399 of 27 March 2017 (articles L 225-102-4 and L 225-102-5 of the French Commercial Code) needs to be taken into account as it created a duty of care for parent companies and contracting companies. Accordingly, all companies with their registered office in France and employing at least (i) 5,000 employees, including in their subsidiaries with registered offices in France, or (ii) 10,000 employees, including in their subsidiaries with registered offices in France or abroad, must establish and effectively implement a so-called ‘vigilance plan’.
This plan, which is intended to be drawn up involving the company's various stakeholders, includes reasonable vigilance measures in order to identify risks and prevent serious violations of human rights and fundamental freedoms, the health and safety of persons and the environment, resulting from the activities of the company, its subsidiaries, subcontractors and suppliers with which it has an established business relationship (i.e., one that is ongoing, stable, habitual and with a certain continuity of business flow).
As the concept of "serious harm" is not defined, it is up to French courts to assess whether the company's activity presents a serious risk to human rights and the environment, evaluate the vigilance plan and ensure that companies have put in place the necessary measures in view of the risks identified. The company must therefore put in place "reasonable" vigilance measures, which implies charges that are proportionate to a given situation and which may vary according to the seriousness of the risk, its nature, the company and the tools at its disposal, in a context of an obligation of means.
The company may be sued for compensation for the damage caused by its failure. Claims may be made by any person who is "justifying an interest in acting". This notion, which is not defined, includes in particular NGOs, consumers, trade unions and associations, some of which have already taken action concerning behaviour considered insufficiently respectful of the rights of populations located in emerging countries or the rights of employees of the group or its subcontractors.
In the context of COVID-19, several NGOs such as the European Trade Union Confederation, the Worker Rights Consortium, the Clean Clothes Campaign and the European Center for Constitutional and Human Rights have appealed to large multinational companies to exercise their duty of vigilance with respect to their subsidiaries and subcontractors by honouring their commercial contracts, giving precedence to the right to health over delivery times and making cash advances to ensure the payment of salaries to their subsidiaries and subcontractors.
It is therefore legitimate to assume that associations and NGOs will be attentive to the measures taken by French companies as part of their duty of care and that they will be able to take legal action against those companies failing to comply with their legal obligations in the COVID-19 context.
Strictly speaking, except in specific situations (e.g. for damages caused by a defective or inadequate health product), potential liability claims from customers or employees in relation to COVID-19 should not be eligible for French class actions (action de groupe) where the court assesses the liability of the defendant and defines the group of persons eligible to compensation, as those actions are only available in some restricted areas (e.g. for consumer or environmental claims). However, customers or employees placed in a similar situation could gather with the aim of sharing their resources and then instruct one single law firm to represent them in a so-called collective action, where compensation is claimed on the basis of each individual case, but in one single procedure.