Balancing security and maintaining business during the COVID-19 pandemic in France

17 March 2020

Companies must find a delicate balance between prevention, the obligation to protect the health of their employees and the need to keep their business running.



Teleworking

"Under exceptional circumstances, in particular the threat of an epidemic, or in the event of force majeure, the implementation of telework may be considered as an accommodation of the workstation made necessary to allow the continuity of the company's activity and to ensure the protection of employees"[1]. Employers can therefore unilaterally decide that an employee should telework and its implementation does not require any particular formalism.

The use of telework is therefore an additional measure of prevention and protection of employees allowing at the same time the continuity of the company's activity. However, the employee's job must also be suitable for teleworking, which will be the case for executives and for employees in the tertiary sectors but not for other industries where physical presence in the workplace is essential.

Employees eligible to telework need to be provided with the necessary equipment. In this respect, the recent strikes linked to the movement against pension reform have already enabled some companies to be organised. Telephone meetings and videoconferences should also not be neglected if telework is developed on a large scale in order to limit the isolation of employees as much as possible.

Right of withdrawal

"A worker shall immediately alert the employer to any work situation which he/she has reasonable cause to believe presents a serious and imminent danger to his/her life or health and to any defect in the protection systems. He/she may withdraw from such a situation"[2].

This right of withdrawal is an individual right that is exercised in relation to a specific situation, in the workplace and in connection with work. The assessment of the right of withdrawal, and its possible abuse, is examined on a case-by-case basis, depending on the employee's point of view, in the light of his/her knowledge and experience. A person with respiratory problems or a pregnant woman is obviously in a different situation than other employees.

Adopting a consistent position since the "Flu Pandemic" national prevention and control plan, the government states, "in the event of a crisis, the possibilities of exercising the right of withdrawal are severely limited, since the employer has taken the necessary prevention and protection measures, in accordance with the government's recommendations". It remains to be seen whether a judge will share this view in the event of litigation (brought by the employer, or by the employee if deductions have been made from the salary). To our knowledge, no case law exists to date on the exercise of a right of withdrawal in the event of an epidemic.

Regularly informing employees about actions to be taken (hygiene measures to be adopted, restrictions on business trips in hotspots, etc.) and quality dialogue within the company will probably help to avoid taking such issues before a court.

Employer Responsibilities

Employers must take any measures required to ensure workers' safety and protection of their physical and mental health. They must also see to it that such measures are adapted to take account of changing circumstances and aim at improving existing situations.

Failing this, contamination of an employee could be recognised as an occupational disease. In addition, the affected employee could then potentially claim that the employer committed an "inexcusable wrongdoing" ("faute inexcusable").

Employers should also not underestimate the psychological risk of this health crisis, amplified by social networks and professional emailing allowing rumours (a colleague becomes suspicious because someone heard him cough), to spread faster than the virus.

In order to limit these risks, it seems equally important to keep proof of what has been set in place: invoices for hygiene products and protective equipment, written instructions to employees and visitors, updating the mandatory occupational risk assessment document, exchanges with staff representative bodies, more frequent cleaning of offices, etc.

Footnotes

[1] French Labour Code L1222-11

[2] French Labour Code L4131-1


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