The new challenge of SARS-CoV-2 raises numerous employment law questions.
We have compiled the most important questions from a management point of view for you. In employment law, however,
caution is required, as it always depends on the individual case. Legal advice is just as important in dealing with the virus as proper hand hygiene.
This FAQ does not replace a review of the legal situation in individual cases, and does not constitute legal advice. Prudence is the order of the day. Our task force members Claudia Jonath, Markus Asshoff, Mounira Freih, Tiphaine Puzin, and Julie Filliard are available should require legal consultation.
Government recommendations
Must employers follow the recommendations of the Government?
The employer is bound by an obligation to take all necessary measures to ensure the employees’ health and safety. Therefore, the employer shall follow the recommendations of the Government, notably to limit the risk of being liable if an employee is infected with the coronavirus.
As well, by following the governmental recommendations, the employer will reduce the number of situations where his employees could use their "right of withdrawal" (as described below).
The employer can also refer to the FAQ published online by the Government.
Duty of notification
Does an employee have to provide information on their state of health?
Employees are bound by an obligation to take care of their own health and safety, and that of their colleagues. Therefore, and especially if they continue to work within the company’s premises, the employee shall inform their employer if they has been in contact with a contaminated person or show coronavirus symptoms. However, employees do not need to inform the employer about their relatives’ situation, unless they are a “contact case” (ie someone who has been in contact with a “confirmed case”).
Right to ask questions
Does the employer have a general right to ask questions about an employee’s state of health?
No. French law does not provide for a general right to ask questions about the employee’s state of health. Caution is advised with regard to data protection law. The employer must not collect information on their state of health by means of medical forms and questionnaires.
However, the employer may raise awareness and invite their employees to provide individual feedback to them or to the competent health authorities with information concerning possible exposure.
In the case of concrete suspicion of illness, the employer should encourage the employee to refer to the governmental recommendations.
Duty to come to work when remote working is not possible
Right of withdrawal (droit de retrait)
Can employees refuse to work because of general danger or because of the epidemic?
No. If an employee is not sick, and if the employer has implemented all the Government’s recommendations regarding coronavirus, the employee shall work (via remote working when possible). The risk of possible infection, for example, on the way to work, does not entitle the employee to refuse to perform their work.
However, an employee may withdraw from a work situation that they reasonable cause to believe that it presents "a serious and imminent danger" to their life or health. They must alert the employer of this situation. This is an individual and subjective right so that, in case of disagreement with the employer regarding the existence of a serious and imminent danger, only the judge may decide whether the employee’s withdraw was or not justified.
Can a worker refuse to travel or be posted?
No. However, the employer must now cancel all non-imperative travels. If the travel or posting is necessary, the employer shall refer to the governmental instructions and ensure that the employee respects them. In such case, the employee may only refuse the requested travel or posting if they have reasonable cause to believe that it poses "a serious and imminent danger" to their life or health (as explained above), and if the employer has not implemented the safety recommendations issued by the Government.
Does the employer have to bring back a posted worker?
The employer is bound by a general obligation to protect the employees’ health and safety. If an employee is posted abroad or in a crisis area, the employer should implement all the governmental recommendations, and, if necessary to protect the employee’s health and security, bring them back.
Does the employee have to participate in meetings or trade fairs if this is in principle consistent with their employment contract activity?
Only if such meetings and trade fairs are essential. In such a scenario, the employee may only refuse to participate in meetings or trade fairs if they have reasonable cause to believe that it poses a "serious and imminent danger" to their life or health (as explained above), and if the employer has not implemented the safety recommendations issued by the Government.
Can a worker refuse to work because their colleague is contaminated?
No. If the employer has implemented the safety recommendations issued by the Government, the conditions regarding the right of withdrawal are in principle not met.
What can employers do if an employee legitimately withdraws from work?
No sanctions or deductions from wages may be applied as a result of the legitimate exercise of the right of withdrawal.
Measures to be taken
General measures
What general measures should be followed under the current circumstances?
Due to their health and safety obligation, the employer shall remind and disseminate all sanitary recommendations to all the employees. They must also postpone non-imperative business trips. They shall also update the Risk Assessment Document (Document Unique d’Evaluation des Risques or DUER) after informing and consulting the Social and Economic Committee (CSE). Such update shall cover the new risks created by the deteriorated functioning of the company (adaptation of the premises, work reorganisation, assignment to a new workstation, remote working etc) as well as those related to exposure to coronavirus.
Sanitary recommendations and masks
Are employees obliged to wear protective face masks?
Not if they are not sick. Masks are reserved for patients on medical prescription, for high-risk contacts, for professionals in personal assistance, medical transport, and health professionals, in town and in hospital.
Do employees have to follow sanitary recommendations?
The Government requests everyone to follow some barrier gestures: washing one’s hands very regularly, coughing or sneezing into one’s elbow, greeting without shaking hands, avoiding hugs, and using disposable tissues.
Medical examination
Can a medical examination by the occupational physician may be requested?
The employee and the employer have respectively the right to ask a medical examination by the occupational physician.
If the employee infected with coronavirus is on sick leave for at least 30 days, they must attend a return-to-work examination by the occupational physician.
Measures for employees at risk
What measures an employer can take if an employee has been in contact with an infected person?
A general health and security obligation binds the employers. If the employee does not benefit from a sick leave from the ARS (French Health Agencies), the employer can unilaterally and notably decide to:
- implement remote working on a priority basis
- reorganise the employee’s workstation, but only if remote working is not possible
- suspend the employee (with continued payment of remuneration)
- take measures in terms of paid vacation days, RTT days and rest days (in compliance with the conditions and limits exposed hereafter).
The employer can also seek information from the occupational physician.
Measures in case of symptoms
What measures to take if an employee shows symptoms?
If an employee shows symptoms of coronavirus, the employer should refer to the governmental recommendations and ask the employee to refer to them as well.
If there is a serious risk of contamination, the employer shall invite the employee to contact their usual doctor. In case of serious symptoms, the employer must call emergency services (phone number = 15).
Measures in case of contamination
What measures should employers take if an employee is infected with coronavirus?
If an employee is infected with coronavirus, the employer must follow the recommendations provided by the Government:
- Cleaning the premises. People in charge of cleaning must be equipped with a disposable gown and gloves (it is not necessary to wear a respiratory protection mask).
- Floor maintenance. The employer shall: clean floors and surfaces with single use wash material with a detergent product, rinse with water with single use wash material, dry out, disinfect floors and surfaces with diluted bleach with a single use wash material (different from the two previous ones).
- No particular action needs to be taken regarding the waste produced by the contaminated person.
Measures in case of mobbing
What are the employer’s obligations if he discovers that, for example, Asians are treated unfairly in the company?
As the employer is bound by the obligation to ensure the protection of his employees’ health and security, and to prohibit discrimination, they are obliged to prevent harassment and discrimination. The employer must ensure that the workforce does not exclude colleagues who, for example, come from risk areas or may have been in contact with colleagues.
In case of harassment or discrimination of such employees, the employer must take all the necessary measures to assess the situation and cease it if it appears true (ie listening to the facts described by the employee concerned, proceeding with an internal enquiry, taking measures (eventually disciplinary measures)).
Home office and remote working
Can employers impose remote working on employees in case of an epidemic?
Yes. The Government even asks employers to implement remote working whenever possible. Remote working is now standard practice.
Indeed, in the event of exceptional circumstances, in particular the threat of an epidemic, the implementation of remote working may be considered as an adaptation of the workstation made necessary to allow the continuity of the company's activity and to guarantee the protection of employees.
In such case, the implementation of remote working does not require any particular formalism.
For employees holding positions where remote working is not possible, the employer can exempt employees from working. In this case, their remuneration will be maintained.
Can employees request remote working to prevent infection?
Employees cannot unilaterally decide to work from home in case of the threat of an epidemic, but can ask their employer to implement remote working. If the employer refuses, they must justify his decision.
Kindergardens, school and nursing
What applies if kindergarten or school is closed due to coronavirus?
The employer can implement remote working or exempt employees from working (with maintained remuneration) or take measures in terms of paid vacation days, RTT days and rest days (in compliance with the conditions and limits exposed hereafter).
If no solution can be found, the employee can obtain a sick leave from their employer. In such case, the employee will perceive social security daily allowances without any waiting period (see below).
Exemption from work
Can the employer suspend the employee against their will?
If it appears justified, and when the employee does not benefit from sick leave and remote working is not possible, the employer can exempt the employee from working. In such a case, the time during which the employee is exempted is qualified as “normal working period” and the employer is obliged to maintain their remuneration.
Paid vacation, RTT days and rest days
Can the employer force the employee to go on paid leave or take RTT days/rest days?
With regard to paid vacation, the employer may oblige the employee to take paid vacation days or change their date (within the limit of 6 days to be taken by 31 December 2020), or split the paid vacation days without the employee’s consent, provided that a company agreement or a collective bargaining agreement authorises it and subject to observing a notice period of at least one full day.
The meaning of the related “ordonnance” dated 26 March 2020 is unclear at this stage, but it seems that, considering the current exceptional circumstances, the employer may still unilaterally modify the date of paid leave already planned (without respecting a 1-month notice period) as long as these paid vacation days are not split (Article L. 3141-16 of the French Labour Code).
With regard to rest days (RTT days, rest days in particular in the case of annual lump-sum agreement in days), the employer may unilaterally oblige the employee to take rest days or change the date of those already planned (within the limit of 10 days to be set by 31 December 2020), subject to observing a notice period of at least one full day.
Similarly, the employer may unilaterally require that the rights allocated to the employee's Time Savings Account (Compte Epargne-Temps – CET) be used to take rest days (within the limit of 10 days to be set by 31 December 2020), the dates of which the employer determines, subject to observing a notice period of at least one full day.
The above quoted limit of 10 days applies for RTT days, rest days and CET days cumulated.
Operating risk
What applies if there is a high level of sick leave in the company?
In principle, the employer bears the risk that (due to illness of the workforce) the employer cannot maintain the business. However, the employer can take various measures to minimise the economic risk, such as short-time work compensation (activité partielle) or working time arrangements (eg overtime, exceptions to maximum legal working duration and rest times etc).
Short-time work (activité partielle)
Can an employer implement short-time work to deal with the consequences of coronavirus on the company’s activity?
The short-time work scheme may be requested by companies in exceptional circumstances, such as the current circumstances related to coronavirus.
However, the request must be validated by the administration in the light of the reasons given by the employer (eg a drop-in activity, massive absence of employees essential to the company's activity etc).
This request for short-time work must be made online and sent within a maximum of 30 days following the effective implementation of short-time work within the company (it applies for short-time work implemented since 1 March 2020).
The request must in principle be accompanied by the related minutes of the Social and Economic Committee (CSE). Indeed, the CSE must be informed and consulted prior to the requesting short-time work to the administration. However, in exceptional circumstances (as currently), the employer has a period of 2 months following their request for short-time work to inform and consult his CSE and send the minutes to the administration.
In such a case, the employer shall indicate to the administration the contemplated date of the meeting. It would mean that the CSE shall be already convened to the consultation meeting.
The administration shall provide the employer with its answer within 2 days; the lack of answer means “approved”.
Which kind of compensation will apply in case of short-time work?
If the short-time work request is accepted by the administration, the employer pays the employee an allowance equal to 70% of their gross salary (calculated as for the paid vacation indemnity). The employer may decide to grant a higher allowance, but the part exceeding the legal allowance will not be reimbursed by the French state.
In return, the employer will receive an allowance from the French state equal to 100% of the statutory allowance paid to employees (within the limit of 70% of 4.5 times the French gross hourly minimum wage (SMIC) (ie approximately € 4,850) and on the basis of a 35-hour weekly working duration maximum).
The allowance paid to the employees is not subject to social contributions but only to the CSG and CRDS taxes.
The duration for benefiting from the scheme is limited to 12 months.
Role of the employee representatives
Must the Social and Economic Committee/Works Council be informed and consulted under such circumstances?
The Social and Economic Committee (CSE) shall be involved in the organisation, management and general running of the company. As such, it must in particular be informed and consulted on major changes modifying the health, safety or working conditions of the employees.
Thus, prior to important changes in the work organisation, short-time work compensation or working time/rest time arrangements, the employer is required to inform and consult the CSE (if possible by video conference).
It shall also be informed and consulted concerning the updating of the Risk Assessment Document (DUER).
The CSE may also take the initiative to ask for the organisation of an exceptional meeting.
As well, in the event of a serious and imminent danger for the employees, the CSE may alert the employer. In such case, the employer shall immediately carry out an investigation with the CSE representative and take the necessary steps to remedy the situation.
Guarantees
Quarantine (continued payment of remuneration)
Should remuneration continue to be paid in the event of an epidemic?
Yes. Should an employee be on sick leave or in quarantine due to coronavirus (upon sick leave delivered by the ARS), they will receive social security daily allowances as for any other kind of sick leave, but without any waiting period.
Complementary payment of remuneration by the employer may also exist if the conditions provided by law (which are alleged during the current period, notably with the suppression of the seniority condition) and/or conditions provided by company regulations are satisfied (as for any sick leave).
Insurance cover
Is the employee insured if they are infected by a colleague?
Employees are protected against illness by the statutory accident insurance.
Employee data protection
What applies to sickness in relation to colleagues?
Caution is recommended regarding the protection of sensitive personal data of employees. The employer must not infringe on the privacy of its employees. For this reason, they may not introduce compulsory temperature readings for employees, nor collect information on their state of health by means of medical forms and questionnaires.
In the event of a report, the employer has the right to record certain information such as the date and identity of the person suspected of having been exposed to the virus, as well as the organisational measures taken (quarantine, remote working, orientation and contact with the occupational physician etc).
To this end, the French Data Protection Authority (CNIL) issued a number of recommendations on 6 March 2020.
Costs
Who bears the costs (eg for occupational healthcare)?
The employer bears the costs of occupational health and safety (eg for occupational medical care). This also applies to changing times or the establishment of suitable remote workstations.
