COVID-19: Guidance for Employers in France

By Camille Champetier de Ribes

04-2020

The outbreak of Novel Coronavirus (COVID-19) is a worldwide pandemic and following the World Health Organization’s declaration that it is a public health emergency of international concern, the French Government has (at the time of writing) raised the risk to France to “step 3” (final step - active circulation on the territory). Understandably, this will be creating great concern and unrest for you and amongst your workforce. Below we answer some key questions to clarify employers' legal obligations and support you in protecting your business and people.

As a general overview of the current situation in France, several radical mandatory measures have been taken over the past few weeks, including the following:

  • The majority of shops, stores and public places have been closed since 15 March 2020 – only essential shops and activities (i.e. food stores, pharmacies, banks, petrol stations, etc.) remain open.

  • Nurseries, schools and universities have been closed since 16 March 2020.

  • A lockdown has been applied throughout the country since 17 March 2020, and will remain in force until at least until 11 May 2020. Travel is currently prohibited except in the following cases and only on the condition that a certificate is presented (as a hard copy or on a smartphone):
    • Travelling between home and the workplace (where teleworking is not possible), and for professional journeys that cannot be postponed;
    • Shopping for supplies that are necessary for the professional activity, and for basic necessities in authorised local shops;
    • Going to see a health professional (if the consultation or care cannot be provided at a distance and / or cannot be postponed);
    • Travelling for compelling family reasons or to help vulnerable people, under the strict condition that the barrier gestures are respected;
    • Physical exercise, for up to an hour per day, around the home and without any gathering (except with people living in the same home) - subject to further local restrictions;
    • Physical exercise, for up to an hour per day, around the home and without any gathering (except with people living in the same home) - subject to further local restrictions;
    • Obligation to report to the police, or to a public or judicial authority;
    • Travel for the sole purpose of participating in missions of general interest at the request of the administrative authority and under the conditions it specifies.

What are employers' obligations in respect of COVID-19?

All employers have a general obligation to take necessary measures to ensure the safety and protect the physical and mental health of their workers.

In the current context, two situations must be distinguished:

  • On the one hand, due to administrative closures a significant number of businesses can no longer operate, in whole or in part. For example, this includes theatres, museums, sales shops (save for exceptions such as grocery stores) and shopping centres (except for delivery activities) and restaurants and bars (except for take-away sales).

    The administrative closure of these companies effectively requires employers to resort to temporary lay-off (partial activity) for employees. We address this issue further below. These administrative closures will be effective at least until 11 May 2020.
  • In contrast, companies that are not fully subject to these measures may continue to operate. However, in such cases, the official recommendation is to give absolute priority to teleworking (working from home), as far as possible.

    If telework is not possible, employers must ensure that employees who physically come to the premises can work in conditions that protect, as much as possible, their health and safety. For example, this implies arranging workstations in a format which allows a distance of one metre between employees. Staff representatives must be consulted in the event of a significant change in the organisation of work (although we note that the meeting may be organised by videoconference).

    Employers will also have to provide certificates allowing these employees to travel from home to the workplace. A template is available on the dedicated information site referenced at the bottom of this FAQ.

    In addition, it is recommended to suspend any physical meetings that are not vital for the continuation of the activity.

More generally, employers should carry out a risk assessment (in connection with the staff representatives and the occupational physician) to be updated continuously as the current epidemic develops, and consider any factors that may make employees particularly susceptible to infection (e.g. close contact with the public, if applicable).

Employers should also consider circulating up-to-date information on good hygiene practices and provide any necessary equipment to facilitate this, such as hand sanitisers. For example, we recommend issuing and updating a reminder of actions employees can take to help stop viruses like coronavirus spreading. Such advice must be provided in French and include the following reminders:

  • Cover your mouth and nose with a tissue or your sleeve (not your hands) when you cough or sneeze

  • Put used tissues in the bin immediately

  • Wash your hands with soap and water often – use hand sanitiser gel if soap and water are not available

  • Greet each other without shaking hands, avoid kisses to say hello

  • Try to avoid close contact with people who are unwell

  • Generally speaking, keep one metre away from each other and avoid close contact (including in the elevator or at the company restaurant)

  • Stay at home when sick(with a medical note)

If possible, this advice should include a signature section at the end explaining that the employee fully understands the advice and undertakes to follow it.

We further recommend notifying employees of where they can access more information if they are concerned. In France, information can be found using the following links (please note that most information is in French, although an English translation is available for some content):

We also advise:

  • to widely publicise the hotline number specifically set up by the authorities for any questions related to the epidemic (available 24/7) : 0 800 130 000; and

  • to invite anyone who suspects they may have been infected to stay at home, and either call their general practitioner (if symptoms are mild) or (if and when symptoms worsen) emergency services, by dialling 15 (this is the usual toll-free number for medical emergencies).
Can employers request or require information from an employee about potential or actual exposure to the virus?

French employers are under a duty to provide a safe and secure working environment under articles L. L4121-1 and sq. of the French Employment Code. The collection of such data may be necessary to protect the health, safety and welfare of other employees. French employees are subject to a more general obligation to comply with reasonable instructions or requests issued by their employer. Employers may therefore ask an employee to voluntarily confirm and specify where he/she has spent the past 15 days in order to assess the level of risk to the workforce. Employers may not, however, ask employees to confirm that they aren't infected or request a medical certificate to the same effect.

Any such data must also be processed in line with the applicable privacy requirements. Information about an employee's health (such as whether the individual has been diagnosed with the virus or is suffering from any symptoms) is sensitive personal data and accordingly additional requirements and obligations apply to the processing of such data. Despite the GDPR being EU-wide legislation, the position is complex from a European data privacy perspective. Employers will find that the type and extent of the information they can compliantly process, and the legal basis for doing so, is likely to vary from country to country.

  • In France, employers should be able to process such employee information by relying on Article 9(2)(b) GDPR together with the 1978 Data-processing and freedoms Act (Loi informatique et libertés), on the basis of the health and safety duty referred to above.
  • French employers would need to show that the collection of employee information is necessary to protect the health, safety and welfare of its employees, and should document its consideration of the risk to its employees and of any alternatives considered.
  • Employers would need to have an appropriate policy document in place for such processing and the usual key principles and obligations (such as transparency, data minimisation and security requirements).
  • In particular employers should avoid systematic and general collection of health-related data amongst employees.

Employers may also face situations where a customer/client requests or requires travel or health information relating to their employees.

  • Where this applies, the employer should as a starting point seek to provide generic reassurance to the client / customer.
  • If this does not suffice, employers should consider whether there are grounds for the employer to provide certain information to the third party. Employers could also consider advising employees that they can provide information to third parties, if requested and if they are happy to do so.
  • Unless there is a clear legal obligation on the employer to do so, employee consent is likely to be the only applicable legal basis for sharing such information with third parties (unless, for example, the employer is legally obliged to so). To be valid, consent must be freely given.
  • The company must not require employees to provide this information to third parties and consider carefully what, if any, further action to take if the employee refuses to do so. There is a risk that where the employer requires employees to attend client sites, any employee consent to the provision of information in order to access those sites would not be freely-given and therefore not valid.

A French employee cannot be disciplined due to a particular state of health, refusing to disclose their health status, disclosing their health status despite the employer's recommendations, or by refusing to disclose where they have been/visited while outside of work. 

Further to the above, the position regarding European data privacy rules and how they impact information relating to COVID-19 is developing. A number of EU governments, including the French Government, have issued further guidance and more still are considering whether emergency legislation may be required, particularly if the situation escalates. The position will need to be kept under review as the situation evolves and further guidance becomes available.

Finally, during his speech on 13 April 2020, the French President Emmanuel Macron noted that public authorities were working on a possible implementation of a digital tracking application to prevent possible new outbreaks at the time of “deconfinement”, (i.e. from 11 May 2020 onwards). As the application is still under development, the many data protection questions raised following this announcement have not yet been definitively answered.

What are employers' obligations where employees are absent or infected?

Infected employees

If an employee is infected with COVID-19, the employer must recommend the employee to stay at home, and either call their general practitioner (if symptoms are mild) or (if and when symptoms worsen) emergency services, by dialling 15.

There is currently no specific requirement for employers to inform staff representatives (such as works councils) if an employee becomes infected. However, it is still recommended to do so, especially if employees are physically working on the premises – with a greater risk to the health and safety of other employees. When disclosing such information to anyone other than the authorities, employers must be very careful to balance the privacy of the individual with the public interest in avoiding the spread of the virus – keeping in mind that this kind of information tends to circulate on its own, and that it is best to address the issue to reassure all the stakeholders than to avoid the subject altogether.

In addition, the current sanitary recommendations are to evacuate and, after a 3h delay, undergo a full cleaning and disinfection of the premises.

Infected employees are indemnified under regular sick leave (details of which will depend on any applicable collective bargaining agreement). 

Potentially Infected Employees or "at-risk" employees

Where an employee has come into contact with an infected colleague, they should, as far as practicable, be released from work or work from home, with, in any event, instructions to take their temperature twice a day for 14 days, to check for symptoms and, if in doubt, to call their general practitioner or the toll-free number “15”, without actually going to their family doctor or to the emergency room. As a matter of course the confidentiality has to be observed as far as possible.

In general, if there is a reason to believe that an employee poses a risk to the health of other employees, the employer may unilaterally ask them to work from home (if it has not already been done) or, if this is not compatible with their duties, to exempt the worker and deny them access to the premises. However, the employee retains their right to remuneration during this exemption period.

If an employee is quarantined /potentially exposed, they are entitled to up to 20 days of benefits from social security, provided that they request the relevant medical certificate (subject to medical evaluation of their particular case). The employer has to top-up social security benefits to maintain at least 90% of the employee’s gross salary for the first 30 days, and 66% for the following 30 days (subject to more favourable CBA rules).

We also note that specific “sick leave” is available to people "whose state of health leads them to be considered at risk of developing a severe form of Covid-19 disease". Such individuals may request to be taken off work for an initial period of 21 days (without going through their doctor). Eligible people include pregnant women (during the third quarter of pregnancy), people with chronic respiratory diseases (such as asthma and chronic bronchitis), and people with heart failure. The employer is also required to top-up social security benefits in these circumstances.

Business travel

Travel within the French territory (whether of a personal or professional nature) must be justified by one of the authorised grounds (see above), and the person must carry a certificate at all times.

Generally speaking, it is preferable to postpone all travel, whether abroad or within the French territory (and whether personal or professional).

If travel (abroad) is unavoidable, employers are advised to refer to the instructions on the website www.gouvernement.fr/info-coronavirus and to make sure that employees follow the relevant guidelines.

As more and more countries are taking measures, often at very short notice, to interrupt air links to France, it is advisable for people who are currently travelling abroad and who are able to do so to take all the necessary measures to return to France by air as soon as possible.

It is particularly recommended that employees on an assignment or secondment to an at-risk area (the updated list may be found on the Ministry for Health's webpage) should be offered repatriation.

Refusal to work or attend work

As far as possible, teleworking should be implemented for the duration of the lockdown period.

Employers working in sectors where working from home is not possible should consider their approach to dealing with employees who want to stay at home to avoid being infected. Employees are under the obligation to perform work, and as such, they may not be absent from work on their own initiative due to the fear of being infected.

However, employees are entitled not to come to the premises:

  • If they are infected or placed on quarantine, and can support this with a medical certificate;

  • If they care for a child at home – in that case, they may be eligible for a specific leave (until the school reopens);

  • If coming to work may actually present a risk to their health and safety e.g. if one of their colleagues is infected - until the premises have been cleaned and disinfected; or
  • If the company has not implemented the required barrier measures for protection and social distancing (which vary according to the sector of activity and the particular tasks of each employee).
    • Do  not hesitate to contact a member of the Bird & Bird team if you would like to conduct an assessment of the measures required for your company.

In some circumstances, a refusal may be treated as disciplinary matter (but employers should always treat this with great caution).

Childcare

All nurseries and schools have now been closed, until at least 11 May 2020 (a minimum reception service is maintained, only for the children of staff that are essential to the management of the health crisis).

If an employee has to stay at home to care for a child (or several children) under 16 years old, they may benefit from a specific leave (with relevant social security indemnities), topped up by an employer's compensation), provided that teleworking is not an available option in their situation.

A form must be filed online by the employer on the national health insurance website; while the employee must provide a certificate stating that they are the only parent who benefits from this specific leave.

What are employers' obligations where offices are partially or fully closed?

In principle, an office closure doesn’t exempt an employer from paying employees their wages. As such, insofar as possible our initial recommendation is to implement working from home for as many employees as possible. Under current circumstances, the employee’s consent is not absolutely required.

Given the current “exceptional circumstances” employers may apply to the “partial activity” scheme (i.e. short-time work / furlough / temporary layoff), which enables the company to temporarily close all or part of an establishment (or reduce the collective working hours), while (i) maintaining only a fraction of the concerned employees’ salaries (usually 70% of their usual gross compensation, subject to CBA or company-based increases), and (ii) obtaining a state-funded allowance to compensate the maintenance of these wages.

A (temporary) reform of the scheme has been enacted gradually over the past few weeks, in order to make it more accessible and enhance the relevant state subsidy that is paid to employers during the Covid-19 crisis. The new measures include:

  • The possibility to apply for partial activity up to 30 days after its implementation (rather than making a prior request);
  • Increased flexibility regarding the obligation to consult staff representatives (their opinion can be obtained after the scheme has been triggered);
  • An increased compensation for employers under this scheme (i.e. reimbursement of up to 100% of what they have paid to employees for unworked hours).
     

At the time of writing, the announced reform has been largely enacted. A decree is still expected to be published in the coming days, to provide further details of specific compensation calculation rules.

Please feel free to reach out to one of our team members for clarification on this topic.

Where can employers and employees access local and national advice?

General information and recommendations (in French) are available here (mostly in French, but some English translations are now available):

- General information and recommendations on coronavirus;
- Specific recommendations for employers and employees; and
- The Government’s and the Ministry for Employment’s Twitter accounts have also been used quite a lot lately to share official updates.

It is strongly recommended to keep up to date with these recommendations, as they are quite detailed, and are updated daily.

Last reviewed 15 April 2020