The outbreak of Novel Coronavirus (COVID-19) is a worldwide pandemic, and understandably this may have created 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.
Following a two-month period of strict lockdown, France begun a gradual relaxation of the lockdown restrictions on 11 May 2020. Since the end of October 2020, the country has alternated between periods of curfew and lockdown.
At time of writing, a country-wide curfew prevents all outside travel between 6pm and 6am (save in limited exceptions, including the possibility for employees to travel to work premises, with a certificate signed by their employer).
Cafes, bars, restaurant, museums, theatres and monuments remain closed until further notice.
As of 24 January 2021, a negative PCR test undergone less than 72 hours before travelling must be presented when entering the French territory.
Furthermore, the state of health emergency (allowing the French Government to take extraordinary measures to counter the pandemic) is in force at least until 1 June 2021.
What are employers' obligations in respect of COVID-19?
Current government guidance states that:
- Home-based work should be the norm for all employees whose duties are compatible with remote working, especially for employees who (i) have a higher risk of a severe form of the disease, and/or (ii) live with a person susceptible to develop a severe form of the disease.
- Employees feeling the need to come back to work on site, should, where possible, be allowed to do so 1 day per week (subject to employer agreement).
- Where home-based work is not possible, employers must implement reinforced work protection measures (see below recommendations)
All employers have a general obligation to take necessary measures to ensure the safety and protection of the physical and mental health of their workers. To assist employers in complying with this obligation, the Government has published an “in-company health protocol” (available here).
Employers should consider circulating up-to-date information on good hygiene practices and provide any necessary equipment to facilitate this, such as hand sanitizers and face masks. For example, we recommend issuing and updating a reminder of actions that employees can take to prevent the spreading of viruses, such as coronavirus. Such advice must be provided in French and should 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
- Wear a mask in enclosed collective areas
- Regularly ventilate rooms as often as possible, at least a few minutes every hour
- 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, and avoid kisses as a form of greeting
- Try to avoid close contact with people who are unwell
- Generally speaking, keep one metre away from each other and avoid close contact (including within elevators, break areas and restaurants)
- Stay at home when sick (with a medical note)
If possible, this advice should also include a signature section at the end of the document, confirming that the employee fully understands the advice and undertakes to follow it.
The "in company health protocol" includes the following measures:
- Ensure social distancing within the work premises (e.g. a physical distance of at least one metre between people).
- Limit the number of people in the same room: each person must be able to benefit from four square metres of contactless space.
- Implement flexible working hours.
- Provide water and soap, or hand sanitizer - cf.our advice supra.
- Regular disinfection of all surfaces.
- Signage of premises (direction of traffic, safety instructions, etc.).
- The wearing of masks is compulsory in all enclosed public spaces (including company premises), with an exception for individual office (with a closed door and sufficient ventilation).
- Urge employees to stay at home when sick (with a medical note) - cf. our advice above.
In addition, it is recommended that employers limit physical meetings that are not vital for the continuation of the business activity. Whilst staff representatives must be consulted in the event of a significant change to the organisation of work, we note that the meeting may be organised by video conference.
More generally, employers should carry out a risk assessment in connection with the staff representatives and the occupational physician. This should be updated continuously as the current epidemic develops, and take into account any factors that may make employees particularly susceptible to infection (e.g. close contact with the public, if applicable). Where applicable, the risk assessment document should also be updated with regard to the risks that remote working may entail such as stress or isolation.
We further recommend notifying employees of where they can access more information on the matter. 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 employers to:
- widely publicise the hotline number set up for questions in relation to the epidemic (available 24/7): 0 800 130 000; and
- encourage anyone who suspects they (or a member of their household) may have been infected to stay at home, until they can undergo a PCR or anti-genic test and obtain the results, and, if necessary, either call their general practitioner (if symptoms are mild) or emergency services (if and when symptoms worsen), by dialling 15 (the usual toll-free number for medical emergencies).
A COVID-19 representative must be appointed in companies with more than 10 employees. The representative will ensure (i) the proper implementation of the measures defined by the company, and (ii) the communication of information regarding the implementation to the employees. The identity and mission of the representative must be communicated to the whole workforce.
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 also subject to a more general obligation to comply with reasonable instructions or requests issued by their employer.
Employers may not ask employees to confirm that they are not infected or request a medical certificate to the same effect.
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. Employers should also document consideration of the risk to employees, and any alternatives considered.
- Employers must 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) will apply.
- It is advisable to follow the updated guidelines given by the CNIL (French data protection agency) on its website, with respect to the current epidemic. Please see here for further information (in French).
- 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 seek to provide generic reassurance to the client/customer as a starting point.
- If this does not suffice, employers should consider whether there are grounds to provide certain information to the third party. Employers could also consider advising employees that they can provide information to third parties directly, 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. In order to be valid, such consent must be freely given.
- Employers must not require employees to provide this information to third parties and should consider carefully what, if any, further action to take if the employee refuses to do so. If an employer requires employees to attend client sites, there is a risk that any employee consent given regarding personal data (in order to access those sites) would not be freely-given and therefore not valid.
In France, an 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.
The Government has launched a tracing application called "Tousanticovid" to limit the impact of new outbreaks. The application is based on a voluntary installation, the anonymization of data and the use of Bluetooth technology, which excludes GPS tracking. Consent is required at each stage. The use of this application may under no circumstances be made compulsory by the employer. However, they may inform employees about the application and encourage them to download it.
What are employers' obligations where employees are absent or infected?
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 emergency services (if and when symptoms worsen). In addition, the employer should notify the occupational physician and follow their instructions regarding the disinfection of the premises and follow-up with the infected employee.
There is currently no specific requirement for employers to inform staff representatives (such as works councils) if an employee becomes infected. However, it may be recommended to do so, depending on the number of infected employees (e.g. in case of a recognised cluster) 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 ventilate the premises, evacuate and, after a three hour delay, undergo a full cleaning and disinfection of the premises.
Infected employees are indemnified under regular sick leave without any waiting period (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 instructions to undergo a PCR or antigenic test, take their temperature twice a day for 7 days, to check for symptoms and, if in doubt, to call their general practitioner or the toll-free number “15”. Confidentiality should 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, where this is not possible, 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).
Since 1 May 2020, vulnerable persons “whose state of health leads them to be considered at risk of developing a severe form of Covid 19 disease” and who cannot telework can benefit from the “derogatory” furlough scheme, provided that they present an “isolation certificate” from their doctor.
Business travel and self-quarantine
Government guidance states that remote meetings are the norm and physical meetings are the exception.
Travelers coming from non-Schengen countries must produce a negative PCR test undergone a max 72 hours before their travel, must sign an affidavit stating that they commit to being isolated for 7 days upon their arrival in France (this self-quarantine remains in principle voluntary). At the end of this 7-day period, they are expected to perform another PCR test.
As of 24 January 2021, Travellers coming from Schengen area countries also have to produce a negative PCR test undergone maximum 72 hours before their arrival in the French territory.
Refusal to work or attend work
Government guidance states that home-based work is the “norm”, as far as possible.
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 required not to come to the premises:
- If they are infected or placed in isolation, and can support this with a medical certificate;
- 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 and the particular tasks of each employee).
In some circumstances, a refusal may be treated as disciplinary matter (but employers should always treat this with great caution).
Employees who have to take care of a child under 16 years old because of the COVID-19 (e.g. if the child’s school is closed due to a cluster, or if the child is infected or a contact case), are eligible for a “derogatory” furlough scheme (only one parent per household may benefit from the scheme).
What are employers' obligations where offices are partially or fully closed?
In principle, closure of an office does not exempt an employer from paying employees their wages.
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 partially compensate the maintenance of these wages.
The terms of this scheme have been modified numerous times over the past year, with many exceptions and specific cases (depending on the company’s field of activity) currently applying.
For further details and up-to-date specific advice on this topic, please feel free to reach out to a member of our team.
Where can employers and employees access local and national advice?
General information and recommendations are available at the following sites (mostly in French, but some English translations are now available):
It is strongly recommended to keep up to date with these recommendations, as they are quite detailed, and are frequently updated.
Last reviewed 26 January 2021