22 May 2020
Mandatory on public transport since May 11, 2020, the wearing of face masks is becoming more widespread in the street. During his speech on May 7, Prime Minister Edouard Philippe took responsibility for the government's decision not to make wearing face masks mandatory in public spaces: "This is not the choice we made (...) when you walk alone in the street or in the countryside, face masks have no immediate effect". Although some mayors – who wanted to make it compulsory to wear a face mask in their municipality – might disagree. The suspension by the court of the enforcement of certain municipal decrees was thus granted (especially on the initiative of the League for Human Rights): imposing the wearing of face masks in public spaces was considered an infringement on individual freedom. It may be assumed that, in the absence of a specific risk inherent to a particular municipality, this approach of the courts will prevail. However, a decree published on May 11 provides that "masks must be worn systematically by everyone, whenever social distancing measures cannot be guaranteed".
The national lockdown exit plan established by the government advocates gives priority to collective protection measures over individual protection measures. Employers must therefore favour collective protection measures, in particular organise procedures such as remote working, the adjust schedules and tasks, the reorganise spaces or work, the install physical separation barriers and the regulate the flows of people/employees.
Only when all these measures are not sufficient to guarantee the health and safety of persons should they be supplemented, as a last resort, by individual protective measures, such as the wearing of face masks. The question arises as to how to determine whether the measures implemented by an employer are sufficient.
While the government’s lockdown exit plan has spelled out in detail the criteria for maximum occupancy of spaces open to the public and in the workplace (via "gauge"), this is not the case for the management of the flow of employees.
The lockdown exit plan also specifies that, when certain situations involve unmanageable risks and therefore the accidental breach of social distancing measures (including by employees), additional measures, such as wearing face masks, should be implemented.
Thus, if it is impossible to implement measures for sufficient social distancing or if there is uncertainty as to whether safety measures are being properly observed, it seems preferable to us to impose the wearing of face masks, in particular with a view to limit the risk of criminal liability and inexcusable conduct. Indeed, it cannot be excluded that judges may consider the mask as a piece of personal protective equipment, like safety glasses and helmets.
Apart from healthcare professionals, the government recommends the supply of FFP1 masks or alternative masks for non-medical use, known as "general public" masks. To compensate for the discomfort of wearing a mask regularly and in anticipation of heat waves, employers are well advised to make their employees aware of the need for adequate hydration, especially in companies where the air conditioning is turned off to limit spreading the virus.
In order to make the measure compulsory, the employer will have to modify its internal rules or write a memorandum (considered as an addendum to the internal rules). Existing procedures for modifying internal rules will then have to be complied with: they will have to define the date of entry into force of the new measure, inform and consult (if necessary) the Social and Economic Committee (“CSE”), communicate the document to the labor inspector and respect the legal formality of filing and publicity.
In our opinion, given the current health emergency, it might be appropriate to immediately impose an obligation to wear a face mask within the company. In this case, information procedures, consultation of the CSE and communication to the labor inspector must be carried out immediately and simultaneously with the introduction of the obligation to wear a mask. In practice, it will also be necessary to advertise widely about this new obligation, by posting and/or sending emails to all employees of the company.
Finally, the single document for the evaluation of occupational risks (“document unique d’évaluation des risques”) should be updated.
by multiple authors