HOW LABOR LAW IS DEALING WITH THE COVID-19 OUTBREAK: On 16 March 2020, the French President declared that France was “at war” against the Covid-19.
A few days later, the whole territory was put in a state of health emergency, which entails a certain number of consequences regarding labor law. A brief overview is necessary.
1. THE « BASE » TEXT: The emergency law No. 2020-290 of 23 March 2020 to cope with the covid-19 outbreak has declared the state of health emergency for a two-month period from its publication (on 24 March 2020) and enables the Government to take, by way of orders, within three months from the publication of the law, emergency measures, notably in matters of labor law, in the following areas:
- Employment contract termination/ partial activity
- Additional sick pay
- Paid leave/days of rest/ “RTT” days off
- Working time
- Employee savings
- Purchasing power exceptional bonus
- Labor court councilors
- Health services at work
- Staff representative bodies (IRPs)
- Professional training
2. THE ORDERS: To this day, several orders and a decree have already been published on the following subjects:Partial activity
A decree of 25 March 2020 and an order of 27 March 2020 have modified the rules applicable to partial activity.
Here are the main provisions of the decree:
- The CSE’s opinion may be sought after an application for partial activity and be submitted to the administration within a maximum two-month period.
- The application for partial activity may be sent within a 30-day period starting on the employees being placed in partial activity.
- Until 31 December 2020, the period for expressly or tacitly accepting authorization requests is brought down from 15 to 2 days.
- The hourly rate of the partial activity allowance is equal to 70% of the gross hourly wage, limited to 4.5 times the SMIC (i.e., minimum wage) hourly rate, the latter may not be less than 9.03 euros.
- The partial activity authorization may be granted for a period of up to 12 months.
- The partial activity measures are available to employees with a flat-rate pay agreement covering days worked (forfait jours).
These provisions apply to the compensation claims sent or renewed since 1 March 2020
The order, on the other hand, clarifies the following:
- The compensation calculation for certain categories of employees (part-time employees, employees with a professional training contract, employees on training, employees with a “forfait jours”).
- The enlargement of the measures to public companies, to employees with employers who are individuals, to foreign companies with no establishment in France but which employ at least one employee in France and to state-owned companies managing a public service of an industrial and commercial nature relating to ski lifts or ski slopes.
- The “fate” of protected employees: the order provides that partial activity shall apply to a protected employee, if it affects all the employees in the company, the establishment, the service or the workshop to which the concerned person is assigned.
- CSG (i.e., generalized social contribution) liability on the partial activity allowance and on the additional allowance paid by an employer pursuant to a collective agreement or a unilateral decision
The Ministry of employment has also established and updated a Q&A on the exceptional partial activity measures
Finally, the quota of hours able to be compensated with respect to the partial activity allowance has been brought to 1,607 hours per employee until 31 December 2020 (Administrative order of 31 March 2020).Paid leave, days of rest and working time
An order of 25 March 2020 provides for the following measures:
- Possibility for the employer, after the conclusion of a company- or a branch-level agreement, to impose on employees, or to modify, paid leave dates within the limit of 6 working days and subject to complying with a one-clear day minimum prior notice.
- Possibility for an employer to impose on employees, or to unilaterally modify, the dates of RTT days off, of days of rest provided for by a flat-rate pay agreement or days of rest resulting from rights assigned to a time saving account, subject to complying with a one-clear day minimum prior notice, which can go up to 10 days.
- Possibility for the companies pertaining to business areas which are particularly necessary for the security of the Nation and for the continuity of economic and social life
- (the list of the concerned companies shall be fixed by decree) not to comply with the maximum working periods, with the daily rest and with the Sunday rest. The use of these exemptions requires informing the CSE and the Direccte (Order No. 2020-323 of 25 March 2020).
An order of 25 March 2020 removes the one-year seniority condition to be entitled to the allowance supplementary to daily allowances, until 31 August 2020.
The order also postpones to 31 December 2020 the date of payment to the beneficiaries of the sums allocated in 2020 in relation with incentive or profit sharing, or the date of their allocation to an employee savings plan or a frozen current account (Order No. 2020-322 of 25 March 2020).Unemployment
An order of 25 March 2020 provides for the extension, for jobseekers having exhausted their rights as from 12 March 2020 and until a date which shall be fixed by administrative order, of the period of payment of their allowance for a period which shall also be fixed by administrative order (Order No. 2020-324 of 25 March 2020).Purchasing power exceptional bonus (known as « PEPA »)
An order of 1 April 2020 relaxed the payment conditions of the purchasing power exceptional bonus.
First, it postpones the deadline for payment of the bonus from 30 June to 31 August 2020. Then, it enables all companies (without an incentive agreement being required) to pay this exceptional bonus with an exemption, of up to 1,000 euros, from social contributions and taxes and from the income tax. For companies with an incentive agreement, this cap is raised to 2,000 euros. Lastly, in order to allow rewarding more specifically the employees working during the covid-19 outbreak, a new criterion for adjusting the amount of the bonus may also be adopted by the collective agreement or the employer’s unilateral decision implementing this bonus. It shall now be possible to take into account the working conditions related to the outbreak (Order No. 2020-385 of 1 Avril 2020).Health services at work
An order of 1 April 2020 provides notably that any medical examinations which are to take place as from 12 March 2020 as part of an employee’s individual health follow-up may be postponed under conditions to be defined by decree, unless the occupational doctor deems it essential to maintain said examination. This concerns after-recruitment information and prevention examinations, examinations of workers with a reinforced individual follow-up and the examinations of temporary workers or employees under a CDD (i.e., fixed-term contract). Examinations of pre-return to work after a sick leave are not concerned (Order No. 2020-386 of 1 April 2020 adapting the conditions for carrying out the duties of the health services at work to the health emergency and modifying the rules applicable to preliminary partial activity authorization requests).Professional training
Among the measures provided for to secure training during the covid-19 crisis, an order of 1 April 2020 notably provides for the possibility for an employer to postpone the work-related interview which gives a summary of the employee’s career path until 31 December 2020 along with the possibility to extend, by amendment, the apprenticeship contracts and professional training contracts whose termination date occurs between 12 March and 31 July 2020 (Order No. 2020-387 of 1 April 2020 ).IRPs
The rules relating to staff representative bodies’ meetings and to professional elections during the state of health emergency have been adjusted by an order of 1 April 2020.
The main measures are the following:
- Suspension, as from 12 March 2020, of the electoral processes which started before 3 April 2020, for a period of three months from the end of the state of health emergency.
- Suspension of the electoral processes which are to start during the state of health emergency, in which case the procedure shall start within three months of the end of the state of health emergency (i.e., before 24 August 2020).
- Extension of corporate offices held by elected representatives and protection against dismissals during the extension period.
- Possibility to hold staff representative bodies’ meetings by video conferences, conference calls (under conditions to be set by decree) or instant messaging (under conditions to be set by decree and if there is an impossibility to arrange a video conference or a call conference or if a company-level agreement provides therefor).
- In any event, an employer must inform the members of the staff representative body of the conditions in which the meeting can be held.
- The decision to impose on employees dates for their days of rest or to implement the exemptions to working time or to Sunday rest, pursuant to the order No. 2020-323, must give rise to immediate information of the CSE. The latter’s opinion shall be given within a month from this information. An employer may however implement these measures before the CSE gives its opinion (Order No. 2020-389 of 1 April 2020 ).
3. INFORMATION GIVEN BY THE MINISTRY OF EMPLOYMENT: In this time of health emergency, questions are being asked as to the health situation and the remedies to resort to and as to the measures employers are to implement.
Independently of the opinions and/or recommendations a lawyer could give them based on a given situation, the existence of a Q&A for companies and employees published by the Ministry of employment and regularly updated is worth mentioning (Q&A for companies and employees)
In this respect, please note that “the main recommendation for companies is to have their employees telework as far as possible and to avoid business travels. They must also implement the recommended measures to fit out work stations so as to ensure a one-meter distance between employees”.
This notably entails updating the single document on risk assessment at work and consulting (remotely) the staff representative bodies.
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