Newsletter No. 136 - April 2020

Pursuant to article R. 4121-1 of the Labor code, “An employer transcribes and updates in a single document the results of the assessment of risks relating to workers’ health and safety conducted pursuant to article L. 4121-3. This assessment contains an inventory of the risks identified in each work unit in the company or the establishment, including those related to thermal environments”. Article R. 4121-3 of the same code imposes on the employer to update this document at least every year, when making any important development decision modifying health and safety conditions or working conditions, and when additional information relating to the assessment of a risk in a work unit is collected. In the current context of health emergency, several courts have stated as a reminder, regarding emergency interim proceedings, the importance of this obligation.

In a first case, the Court of justice of Paris notably reminded the La Poste company of “its specific obligation to draw up a “Single document on risk assessment (DUER) regarding all of its areas of operation and its business lines and activities, in association, as much as possible, with the Occupational medicine services, its internal occupational medicine services, the staff representative bodies and notably the competent CHSCTs^[1], trade unions and, as far as possible, the staff concerned, by conducting a detailed assessment of each occupational risk specifically identified due to the current Covid-19 breakout health crisis, pursuant to the provisions of article L.4121-2 of the labor code and with regard to the general requirements of health and safety at work” (TJ Paris, 9 April 2020, No. 20/52223). As to the Court of justice of Lille, after noting in a case involving a supermarket that the employer had duly updated the single document, it ordered the employer to update it by involving the social and economic committee upstream (TJ Lille, 24 April 2020, No. 20/00395). Regarding the Amazon France Logistique company, it was notably ordered, in the first instance by the Court of justice of Nanterre, to “carry out, involving the staff representatives, the assessment of the occupational risks inherent to the covid-19 outbreak in all of its warehouses” (TJ Nanterre, 14 April 2020, No. 20/00503). The Court of appeal of Versailles confirmed this decision on this point

(CA Versailles, 24 April 2020, No. 20/01993).

Employers will thus have to be particularly vigilant as regards this obligation with respect to the release from lockdown.

A decree defines the rules of the temporary extension of the compensation period for jobseekers whose rights become exhausted during the health crisis period. It also provides for an extension of the period relating to the reference period used for the calculation of the period of registration of the beneficiaries of the back-to-work allowance, along with a period called “délai de forclusion” (on expiry of which rights become exctinct), which an employee, deprived of employment, benefits from in order to assert his rights to compensation. It also provides for the neutralization of non-work days during the health crisis period for the calculation of the compensation period and of the reference daily wage which shall enter into force on 1 September 2020. It suspends, for the time of the health crisis, the period after which the allowance becomes decreasing. In addition, it defines the conditions of taking into account, for the calculation of the period of registration of the temporary entertainment workers, the employment contract’s suspension periods compensated as partial activity. Finally, in order to preserve the situation of employees who would have resigned before the start of the lockdown for future professional mobility made impossible, the decree introduces, on a temporary basis, two new cases of legitimate resignation giving entitlement to the back-to-work allowance. (Decree No. 2020-425 of 14 April 2020, Official Journal of 15 April).

As from 1 May 2020, employees who had ceased work and for whom it will still be impossible to work shall be automatically made partially unemployed. Those are employees who are parents of children under the age of 16, persons who are vulnerable due to a long-lasting health condition or pregnant women in the third trimester, along with employees living with a vulnerable person. These employees shall receive the partial unemployment allowance, even if their company has not closed the establishment or reduced the collective work schedule. These measures shall come to an end at a date to be determined by a decree and at the latest on 31 December 2020 (Rectified Finance Law for 2020 No. 2020-473 of 25 April 2020, Official Journal of 26 April).

The order No. 2020-306 of 25 March 2020 suspended a certain number of administrative periods in labor law in order to cope with the health emergency state. A decree of 24 April notably restores the periods for approval or validation of mutually agreed terminations, along with those for approval or validation of employment safeguard schemes. Labor inspectors shall also be able to again decide on requests for an exemption from the minimum daily rest period, for an authorization to exceed the daily working time or also for an authorization to use substitute teams. According to the Ministry of Employment, “these exemptions are based on reasons of safety, health protection, employment and activity safeguard, along with the reasons of employment and activity safeguard and of stabilization of the working relationships and of collective bargaining” (Decree No. 2020-471 of 24 April 2020 , Official Journal of 25 April).

A decree adopted pursuant to the law No. 2019-180 of 8 March 2019, modifies the conditions for the renewal and extension of the right to the daily parental leave allowance and to the leave for parental presence, available only to parents of a child who is seriously ill, a child with disabilities or who is injured, whose condition requires the presence of someone at his side (Decree No. 2020-470 of 23 April 2020, Official Journal of 25 April).

i.e., Committees for Hygiene, Safety and Working Conditions ↑

HEALTH AND SAFETY: Importance of the single document on risk assessment in the face of the Coronavirus breakout.

UNEMPLOYMENT: Extension of certain rights with respect to the state of health emergency.

PARTIAL ACTIVITY: Extension of the exceptional measures to certain employees.

PROCEDURE: Departure from the principle of period suspension during the health emergency state period.

PARENTAL LEAVE: Relaxation of the use of the leave for parental presence and of the daily parental presence allowance.