Covid-19 business criminal law and other issues in Morocco

In Morocco, a business could face criminal liability for exposure or risk of exposure to COVID-19 to staff but not to business partners or the public. Although endangerment of the lives of others is provided for in article 433 of the Moroccan Criminal Code, this offence involves the violation of a particular obligation of prudence or safety. However, no decree or article of law imposes on companies obligations of hygiene and social distancing to be respected towards the public and business partners. The situation is different for companies towards their employees; there are indeed specific legal obligations in terms of health and safety that companies must fulfil towards their employees.

In order to combat the spread of the COVID-19 virus, the Ministry of Labour and Professional Insertion has provided measures that require employers to ensure the safety and hygiene of their employees in its Guide of 19 March 2020. However, these are only recommendations that are not normative and binding, and therefore these recommendations, which must of course be respected, cannot form the basis for the implementation of the criminal liability of the company for endangerment in the context of the current COVID-19 pandemic. 

The Labour Code and the Code of Contracts and Obligations (DOC) set out the health and safety obligations imposed on a company towards its employees. Failure by a company to comply with these obligations are offences punishable under criminal law. It should be noted that in Morocco, the company and the employer are one and the same in terms of the health and safety obligations they must comply with. The distinction is made between the employer as a private individual and the employer as a legal person (company) with regard to the sanctions that would apply. Thus, the articles of law which lay down the obligation to comply with health and safety rules are addressed to the employer, whether a legal entity or a private individual.  According to Article 749 of the DOC , "the employer" is required, inter alia, to ensure that the premises are in a healthy and safe condition. He must also take "all precautionary measures necessary to guarantee the life and health of his employees in the performance of the work they carry out under his direction or on his behalf". Moreover, article 281 of the Labour Code stipulates that the employer must ensure that work premises are kept "in a good state of cleanliness" and present "the conditions of hygiene and sanitation necessary for the health of employees". While article 282 provides that "the work premises must be laid out in such a way as to guarantee the safety of the employees".

In principle, only the employer can face criminal liability for such exposure or risk of exposure. However, it is possible for the employer to transfer criminal liability by delegation of authority to an agent. Thus, an employer who has not personally taken part in the commission of the offence may be exempted from criminal liability if he can prove that he has delegated his powers to an agent.

The delegated agent must have technical knowledge and an understanding of the texts to be enforced, and must have sufficient power of command to obtain from the employees under his supervision the necessary obedience to comply with the law.

1. In case of violation by the company (the employer as a legal entity) of the legal provisions regarding health and safety, the court may order the temporary closure of the company for a minimum of 10 days and a maximum of 6 months (article 300 of the Labour Code). The court may attach to its judgement the prohibition referred to in articles 90 and 324 of the Criminal Code; namely, permanent judicial closure, pursuant to the provisions of article 90 of the Penal Code and if the company opposes the decision of temporary or permanent closure, it will be punished by imprisonment of one to six months and a fine of MAD 200 to 2,000, in accordance with the provisions of Article 324 of the Penal Code. 
2. Failure by an employer or delegated agent to comply with the provisions of the Labour Code concerning the health and safety of employees exposes him to criminal fines of between MAD 2,000 and MAD 5,000, in accordance with the provisions of article 296 of the Labour Code. The amount is doubled in the event of a repeat offence within two years followed by a final judgement (article 299 of the Labour Code). In this case, it is not necessary for the employee to suffer damage, the mere exposure to a risk is sufficient to characterise the offence.And, if an employee contracts the COVID-19 and this results in "an incapacity to work for more than six days", the employer is punished "by imprisonment for one month to two years and a fine of MAD 200 to MAD 500 or one of these two penalties only", in accordance with article 433 of the Criminal Code, if it is shown by this employee that he contracted the disease because of the employer's failure to comply with the obligations relating to hygiene and safety on the company's premises. Also, if covid-19 resulted in the death of an employee, the employer's liability may also be sought on the basis of the provisions of article 432 for involuntary manslaughter of the Criminal Code if it can be shown that it was the failure to comply with safety and health obligations that led to that death.

No, not to our knowledge. 

The Guide of the Ministry of Labour and Professional Insertion states that, as part of its obligations to employees, the employer should ask employees to telework whenever possible. The Ministry of Labour, in its Guide, recommends that employers should encourage telework, where possible "and provided that an agreement is reached between the parties without prejudice to the rights resulting from the pre-existing employment relationship before resorting to home-based work".

When the company's activity does not allow the use of telework, the employer must rethink and adjust the conditions and organisation of work in order to limit the risk of contagion: setting up rules of distancing and barrier gestures, limiting the grouping of employees, avoiding non-essential meetings and journeys, providing for team rotation, etc.

In addition, in order to fulfil his obligations and not expose himself to criminal penalties, the employer must constantly take into account the evolution of the risks related to COVID-19 within the company and communicate to the employees the updated health and safety measures in accordance with article 24 of the Labour Code. Indeed, according to this article, the employer must communicate in writing to the employees at the time of hiring as well as at each modification, the measures relating to the preservation of their health and safety. In the performance of his duties, the employer may rely in particular on the advice of the occupational medical services or occupational physicians (articles 304 and seq. of the Labour Code).

During his work at the company's premises, if an employee becomes infected with COVID-19, he has the right to bring a civil action in tort against the employer because the employer is civilly liable for damages to employees caused by his fault, according to the principle of civil liability established by DOC (article 78 of the DOC).

In order for the employer's civil liability to be engaged, three conditions must be met: a fault must be imputed to the employer by the employee (failure to comply with health and safety obligations in the workplace), damage caused to the employee through the employer's fault ( COVID-19 illness) and a causal link between the fault and the damage. 

Class-actions in Morocco do not seem possible against companies in the context of COVID -19. Indeed, consumer protection associations are the sole beneficiaries of the class-actions, introduced into Moroccan law by Law No. 31-08 on consumer protection measures.