NewsletterNewsletter No. 137 – May 2020
STAFF REPRESENTATIVES: Modification of the periods of information and consultation of the CSE during the state of health emergency.
By exemption from the provisions of the labor code, along with, as the case may be, agreement provisions applicable within the company, the periods for communicating the agenda of the CSE’s meeting, which are applicable when the information or consultation relates to the employer’s decisions which aim at coping with the economic, financial and social consequences of the extension of the covid-19 outbreak, have been reduced; it has been reduced to at least two days prior to the meeting for companies with at least 50 employees. The periods for the expert to operate have also been reduced. These periods shall remain in force until 23 August 2020 (Ord. Nos 2020-507, 2020-508 and 2020-509 of 2 May 2020, Official Journal of 3 May).
PARTIAL ACTIVITY: Modification of the calculation rules of the partial activity compensation for certain categories of employees.
In the exceptional circumstances relating to the covid-19 outbreak, a decree provides details about the calculation methods of the compensation and of the partial activity allowance notably for flight crews. It also defines the terms applicable regarding partial activity to senior executives, employees who benefit from a permanent contract and sea fishermen paid from shared proceeds. (Decree No. 2020-522 of 5 May 2020, Official Journal of 6 May).
PARTIAL ACTIVITY: Publication of the vulnerability criteria justifying the switching to partial activity.
A decree defines the criteria allowing to identify vulnerable private law employees who face the risk of developing a severe Coronavirus infection and may in this respect switch to partial activity. These criteria, which are defined by reference to those detailed by the French Public Health Council in its opinions relating to ensuring care for persons with a risk of severe covid-19 infection, are the following:
– to be 65 or more;
– to have a prior cardiovascular history;
-to have diabetes if poorly controlled or presenting complications;
– to have a chronic respiratory disease likely to decompensate in case of a viral infection;
– to have a chronic renal insufficiency treated by dialysis;
– to have progressive cancer under treatment (excluding hormonotherapy);
– to suffer from obesity (body mass index (BMI) > 30 kg/m2);
– to suffer from congenital immunosuppression;
– to suffer from cirrhosis, Child Pugh Grade B at least;
– to suffer from major sickle-cell syndrome or to have a history of splenectomy;
– to be in the third trimester of pregnancy
(Decree No. 2020-521 of 5 May 2020, Official Journal of 6 May).
UNIONS: Validation of the financial transparency requirement.
Article L.1221-1 of the Labor code, introduced by the law of 20 August 2008, provides that the unions’ representativity shall be determined based on a certain number of cumulative criteria, among which financial transparency. A union has submitted a preliminary question of constitutionality to the French Supreme Court (Cour de cassation) in this respect. It considered notably that this provision disregarded the freedom of association, the principle according to which workers are allowed to participate in the collective determination of the working conditions, the principle of equality before the law along with the principle of separation of powers. Having to address this question, the Constitutional Council has judged that this provision conformed to the Constitution, stating as a reminder that “the legislator meant to allow employees to make sure of the independence, notably their financial independence, of the organizations likely to represent their interests” and that “a non-representative union could prove its financial transparency either by producing accounting records […] or by producing any other equivalent document” (CC No. 2020-835 QPC of 30 April 2020).
CORONAVIRUS: Extension of the state of health emergency.
The state of health emergency declared by article 4 of the emergency law No. 2020-290 of 23 March 2020 to cope with the covid-19 outbreak shall be extended until 10 July 2020 included. After having been validated by a vast majority by the Constitutional Council, the law extending the emergency state came into force on 12 May (CC No. 2020-800 DC of 11 May 2020). Regarding labor law, this text provides notably that the quarantine periods are to be considered as periods of presence with respect to the distribution of profit-sharing and incentives. It also provides that employees who are quarantined shall be protected from dismissal, as are victims of occupational accidents or occupational diseases (Law No. 2020-546 of 11 May 2020, Official Journal of 12 May).
OCCUPATIONAL MEDECINE: Temporary conditions for leave prescription and renewal.
The order No. 2020-386 of 1 April 2020 authorizes occupational doctors to prescribe and renew, on a temporary basis due to the covid-19 outbreak, leaves for employees who are to be quarantined or who are likely to develop severe covid-19 or who are living with such persons. The decree implementing these provisions was published on 12 May. It notably provides that a leave prescribed to employees who are quarantined must be communicated by the doctor simultaneously to the employee and the employer. The notification of work interruption prescribed to vulnerable employees must, on the other hand, be sent by the latter to the employer
(Decree No. 2020-549 of 11 May 2020, Official Journal of 12 May).
TRAVEL ALLOWANCES: Determination of the conditions of application of the “sustainable mobility package”.
Instituted by the guidance law No. 2019-1428 of 24 December 2019 on mobility, this package consists of the payment by the employer of the expenses incurred his employees who commute to work using their personal bike or electric bike, or as driver or passenger in a car pool, or using public transport (with the exception of subscription fees mentioned at article L. 3261-2 of the labor code), or using other shared mobility services. The decree states that the other shared mobility services are the rental or self-service use of mopeds, motorcycles, cycles with pedal assistance and personal transportation devices, accessible from the public highway, with an engine other than a heat engine or which are not thermally assisted and car sharing services with low emission vehicles (Decree No. 2020-541 of 9 May 2020, Official Journal of 10 May).