As the coronavirus and the illness it causes, COVID-19, continue
to spread, employers in France are taking into account the risk of
an epidemic caused by the increase in the number of people who may
become affected, both in France and abroad.
To this end, employers may want to limit their employees'
travel, consider teleworking arrangements, plan for employee sick
leave, and anticipate the concerns of employees and their
representatives. They also need to take into consideration the
recommendations of the supervisory authority regarding the privacy
of employees' personal data.
On February 28, 2020, France's Ministries of Health and
Labour published a series of questions and answers to assist companies and
employees concerned about workplace issues due to COVID-19. These
questions and answers were then updated on March 9, 2020.
Similarly, on March 6, 2020, the French Supervisory Authority
(CNIL) provided its own recommendations concerning specific aspects of
privacy law (see question 5 below).
Question 1. How can employers secure employee travel?
As part of their safety obligation to employees (Article L.
4121-1 of the Labour Code), employers must limit their
employees' business trips to areas considered to be at
risk.
The government first issued a list of at-risk areas, which was
then removed in the March 9, 2020, version of the Q&A due to
the virus's spread throughout the world and in France.
For employees identified as being at risk, the government
recommends that protective measures be put in place, including
teleworking, the use of paid leave or the reduction of working time
(réduction du temps de travail (RTT)) at
the employer's initiative, or the limitation of meetings at
which employees are not required to attend during the 14-day
protection period.
Question 2. How can employers organize telework?
In order to limit the risks of contamination between employees,
the government recommends the use of telework when the nature of
the employees' activity allows it.
Indeed, the risk of an epidemic may justify the use of telework
without the employee's consent (Article L. 1222-11 of the
Labour Code). While the government indicates that no particular
formalism is necessary, it would nevertheless seem appropriate to
bring the terms and conditions for telework to the attention of the
employees concerned, and in particular to inform them of the
duration of this exceptional situation and, where appropriate, the
arrangements under which they will be informed of the renewal or
the reduction of this measure.
Question 3. How are social security benefits and employers'
complementary payments ensured?
When telework is not possible, it is up to the employer to let
the employee work on his or her premises.
If an employee is likely to be a carrier of the virus, he or she
may consult a doctor authorized by the Regional Health Agency who
may prescribe sick leave corresponding to the recommended isolation
period of 14 days. Where a child of an employee has been confined,
the employer may ask the Social Security services to grant leave to
one of the parents for the duration of their child's
confinement. Pursuant to Decree n° 2020-73 of January 31, 2020,
and Decree n° 2020-193 of March 4, 2020, the employee is not
subject to any waiting period, whether in terms of daily social
security benefits or the employer's complementary payment.
In the absence of sick leave, it is possible to grant an
activity exemption to the employee, who then remains remunerated
during this period.
Question 4. How can the concerns of employees and their
representatives be handled?
The government's guidance indicates that the risk of an
epidemic could justify the transition of companies to partial
activity—for example, if employees essential to the
continuity of the company are infected by the virus or if the
government puts in place measures to restrict travel.
The guidance also reminds employers to consider amending the
risk assessment document, which records all risks on the premises
of the company and safety measures put in place. However, by
stating that this amendment must be made "within a
reasonable time," the government appears to be giving
employers a delay.
Similarly, while the company's social and economic committee
must in theory be consulted prior to any major change in the
organization of work (e.g., to make use of teleworking), recourse
to partial activity, or prior to any derogation from the rules on
working hours and rest (if the employer wishes to change the dates
of leave for employees who have already taken their leave), the
government provides that "if the urgency so requires, the
employer may take precautionary measures before carrying out the
consultation." The consultation can also be done by
videoconference to limit physical contact.
Lastly, employers may be concerned about a massive use among
their employees of the right of withdrawal. Under the Labour Code,
employees can exercise the "right of withdrawal" by
withdrawing from a situation that they have reasonable grounds to
believe poses serious and imminent danger to their lives or health.
The guidance states that the government considers that the
condition of "grave and imminent danger" that is
necessary for the individual right of withdrawal to be considered
well-founded is not met if the employer follows in good faith the
national coronavirus recommendations for protecting workers'
health and safety.
Question 5. Can employers collect data concerning their
employees' health?
CNIL provided guidelines concerning the handling of the health
crisis with regard to personal data privacy.
Employers must refrain from collecting information on possible
symptoms displayed by employees/visitors and their relatives, be it
in a general way or through individual inquiries and requests.
It is therefore not possible to collect the body temperature of
employees or visitors in a systematic way at the entrance of the
employer's premises.
However, employers can raise employee awareness to encourage
employees to report to their employers or to health authorities
their possible exposure to the virus.
Upon request by health authorities, employers may communicate
information relating to the health of employees and the nature of
the exposure to the virus.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Gloss