COPE WITH THE UNEXPECTED CONFINEMENT SITUATION

(note of March 17, 2020 at 2 p.m.)

As we all anticipated, a 15-day confinement measure was announced yesterday by the President of the Republic. Nevertheless, many questions remain unanswered, which we hope to be able to answer in the coming hours or days.

For many of us, this will mean that it will be forbidden to circulate except for essential activities: going to a food market or a pharmacy. Beyond that, all travel – which could put us in contact with other people – would be prohibited.

For companies, this means that:

– either the company will be involved in an essential activity (food market or pharmaceutical as referred to above, but also energy supply activities, perishable materials industry, work relating to national defense, etc.), which will lead to a maintenance of activity, or even an increase in activity

– or the company will be involved in an activity that will have to be maintained with a staff reduction (activities in the media, in telecom, machine maintenance activity, continuous fire factory activity etc.).

– or the company will be involved in a “non-essential” activity which will therefore be provided intermittently or even suspended for a few weeks (event industry for example).

It is obvious that the stakes for these various companies will not be the same:

1. Participation in an essential activity

1.1

It may be recalled that the principle of the obligation of safety incumbent on every employer with regard to the physical and moral health of employees (obligation resulting from the judgment of 28 February 2002 No. 00-11.793) will fully apply here.

It should be remembered in this respect, regardless of the category in which companies are, that an employer must take all the preventive and safety measures required by a situation so that employees do not develop an occupational disease. An occupational disease would be considered as an inexcusable fault if the employer was or should have been aware of the danger to which the employees were exposed and did not take the necessary measures to protect them from it.

The employer is moreover recognized as being responsible for damage to the health and safety of its employees even if the acts in question were committed by persons who are not employees of the company (Cass. Soc. 30 January 2019 n°17-28.905), e.g. the customers of a business who would violate the rules of distance and risk contaminating the employees.

The employer may be exonerated from his liability if he can justify having taken all the necessary preventive measures to put an end to the facts that are detrimental to an employee’s health (Cass. Soc. 25 November 2015 n°14-24.444).

1.2

Having said this, it is therefore advisable for each of the companies that shall maintain their activities in full and in particular for activities receiving the public to follow scrupulously the government’s recommendations, which are themselves dictated by a scientific committee and are regularly updated.

These recommendations can be found on the following website: https://www.gouvernement.fr/info-coronavirus (including a “space for professionals”).

These measures are evolving, so it is advisable to update regularly.

1.3

These measures are nothing without the active participation of the employees and customers of these companies.

As far as employees are concerned, it is incumbent on each of them to take care, according to his or her possibilities, of his or her own health and safety and that of other persons concerned as a result of his or her acts or omissions at work (Article L 4122-1 of the Labor Code).

It will also be necessary to deal with a potential increase in activity or even a reorganization of activity (change in opening hours, implementation of specific measures, e.g. presence of security guards for access to stores, etc.).

In this hypothesis, it will naturally be possible to hire additional employees on fixed-term contracts for increase of activity and also to modulate the working hours of employees already hired. Certain provisions of the Labor Code allow derogations from maximum working hours and rest periods. They may be applied in emergency situations for limited periods after information and/or request for authorization from the Labor Inspectorate and/or the DIRECCTE and staff representatives.

In order to answer your questions on the maintenance of activity, we have prepared a Q&A note, to which you can refer.

2. Participation in an activity maintained with a staff reduction

Here a choice has to be made as to which staff will have to continue working.

A “cartography” of the company must therefore be drawn up.

In this context, each operational department or service should designate the person capable of taking decisions and check that they have the necessary powers and delegation of signature to continue the activity.

To this end, the heads of department are in charge of:

identifying the positions and functions essential to the continuation of the activity, and determining the employees capable of holding these positions, taking into account versatility,
taking into account the foreseeable availability of employees in the light of the closure of nurseries and schools and the possible limitation of public transport,
taking into account the need for home support during the pandemic period due to disability or medical factors,
determining the activities that can be carried out via home office. Article L. 1222-11 of the Labor Code indeed mentions the risk of an epidemic as a possible justification for the use of home office without the employee’s agreement, although it is obviously preferable to obtain it. The implementation of home office in this context does not require any particular formalism.

3. Participation in a “non-essential” activity

3.1

In this hypothesis, as employees are no longer authorized to leave their home, two possibilities must be considered:

if the work allows it, home office should be set up (cf. above article L. 1222-11 of the Labour Code),
if home office is not possible, the employee no longer works.

In this case, it is possible to place the employee on paid leave with his or her consent.

It is also important to note that if employees were already on paid leave at the time the confinement is announced, the leave will run normally until its scheduled end.

3.2

This leave situation will, of course, be temporary, and the question arises as to whether employers could deprive employees of their remuneration; “force majeure” could be a cause for suspension of the contract for which neither the employer nor the employee is responsible.

The employment contract would be considered suspended and not terminated. Such suspension of the employment contract would result in the interruption of the work and would exempt the employer from payment of remuneration.

For now, the government favors another outcome: short-time working

Indeed, in view of the announced epidemic, the government has declared that it intends to limit the impact of the coronavirus on economic activity as much as possible and has set itself three objectives: to maintain the economic fabric, to avoid possible business failures and to preserve employment.

Thus, companies in difficulty were able to request a deferral of the payment of their social security contributions, which were due on March 15, 2020

In addition, in order to maintain employment in companies, the partial activity scheme is being simplified and strengthened.

The principle is as follows: the partial activity scheme may be requested by companies in exceptional circumstances (Article R. 5122-1 of the Labor Code). Employees who, while remaining bound to their employer by an employment contract, suffer a loss of pay due either to the temporary closure of the establishment (or part of the establishment), or to the reduction of the working hours usually practiced in the establishment below the legal working hours, benefit from a specific allowance which is paid by the State.

When employees are placed in a position of partial activity, the employment contract is suspended but not terminated. Thus, during the hours or periods not worked, employees must not be at their place of work, at the disposal of their employer and comply with his directives.

As the employment contract is suspended, employees receive a compensatory allowance paid by their employer. This compensation must be at least 70% of the gross previous remuneration and may be increased by the employer. In the case of training during the partial activity, this allowance is increased to 100% of the previous net remuneration.

The executive has made a commitment regarding the time limit for the administration’s response to requests to take over the partial activity, which must not exceed 15 days in normal circumstances. Requests to the DIRECCTE will continue to be processed within 48 hours, as they have been since the beginning of the crisis. In addition, the allowance paid by the State to the employer in the event of partial activity is increased from 7.74 euros to 8.04 euros per hour for companies employing between 1 and 250 employees.

According to the government’s most recent statements, it seems that a total removal of the ceiling on the scheme is envisaged. The Minister of Labor has announced that the State would “fully” cover the short-time working requested by companies penalized by the coronavirus epidemic (except for extraordinarily high salaries, there seems to be a limit set at 4 minimum wage).

Finally, the FNE (National Employment Fund) and the skills operators (OPCO) will be mobilized to maintain the training effort during the period of partial activity.

It is to be expected that many other measures will be taken, as is currently the case in Italy (baby-sitter’s voucher, special leave equal to x% of salary, allowance for the self-employed, etc.).

At this stage, we have no visibility on these potential measures and are patiently waiting for the publication of the decree on short-time working.