CSE: New responsibilities of the CSE in terms of ecological transition.
The law of 24 August 2021 “on fighting climate change and strengthening resilience to its effects” involves employee representatives in the ecological transition. Thus, the CSE in companies with more than 50 employees, whose mission is to “ensure a collective expression of the employees allowing their interests to be permanently taken into account in decisions relating to the company’s management and economic and financial development, work organization, vocational training and production techniques (…) must now also take these into account “with regard to the environmental consequences of these decisions.” Likewise, the CSE shall be informed and consulted “about the environmental consequences” in relation with the so-called “ad hoc” consultations (article L.2312-8 of the labor code), along with the three recurrent consultations: 1/strategic orientations of the company, 2/economic and financial situation, 3/social policy, working conditions and employment (articles L.2312-17 and L2312-22 of the labor code). Following this same logic, the chartered accountant’s mission in relation to the three recurrent missions shall now take into account elements of an environmental nature in their studies
SEXUAL HARASSMENT: Updating the definition.
Article L.1153-1 of the labor code, in its current wording, stipulates that: “no employee must be subjected to acts 1/ Either of sexual harassment, consisting of words or behavior with repeated sexual connotations which either undermine dignity because of their degrading or humiliating nature, or create an intimidating, hostile or offensive situation against them. 2/ Either assimilated to sexual harassment, consisting of any form of serious pressure, even not repeated, exerted with the real or apparent aim of obtaining an act of a sexual nature, whether sought for the benefit of the perpetrator of the facts or for the benefit of a third party.” As of 31 March 2022, this text shall provide that sexual harassment may also be constituted: “a/ when the same employee is subjected to such comments or behavior coming from several persons, in concert or at the instigation of one of them, even though each of these persons did not act repeatedly;
b/ When the same employee is subjected to such comments or behavior, successively, coming from several persons who, even in the absence of consultation, know that these comments or behavior establish repetition” (Law No. 2021-1018 of 2 August 2021).
HEALTH CRISIS: Law relating to the health crisis management.
In particular, this law requires the public to either present “the result of a virological screening examination not concluding that there is contamination by covid-19, or a document in proof of vaccination status concerning covid-19, or a certificate of recovery following contamination by covid-19 (…)” to access “(…) certain places, establishments, services or events where the following activities are carried out:
a/ leisure activities;
b/ commercial catering or drinking establishments (…);
c/ fairs, seminars and trade fairs;
d/ except in an emergency, health, social and medical-social services and establishments (…);
e/ long-distance travel by public transport (…);
f/ by reasoned decision of representative of the State at the department level (…) department stores and shopping centers, beyond a threshold set by decree (…).
This regulation, applicable to the public, has been extended, since 30 August 2021, to employees and all persons (subcontractors, temporary staff, volunteers, etc.) who work in establishments where users are required to present a valid health pass. The law provides that when an employee cannot present the requested supporting documents and “(…) does not choose to use, with the consent of their employer, conventional days of rest or days of paid leave (…)“, the employer notifies them, “(…) by any means, the same day, of the suspension of their employment contract.” This suspension “(…) which is accompanied by the interruption of the payment of remuneration, shall end as soon as the employee produces the required supporting documents.”
If the situation continues beyond a period equivalent to three days worked “the employer calls the employee for an interview in order to examine with them the means of regularizing their situation, in particular the possibilities of assignment, temporary as the case may be, within the company on another position not subject to this obligation” (Law No. 2021-1040 of 5 August 2021).
HEALTH CRISIS: Details from the ministry of labor concerning the obligation to be vaccinated or to have a health pass in the workplace.
Following the publication of the aforementioned law, the ministry of labor updated its “questions and answers”. Here is a selection of the elements published on 9 August 2021 on the website of the ministry of labor:
– Employees who work in areas not accessible to the public (offices) or outside public opening hours, those making deliveries and handling an emergency are not concerned by the obligation to present a health pass.
– All employees as well as trainees can benefit from an absence authorization to be vaccinated. These hours of absence shall be paid and considered as effective work.
– Consultation of the CSE for the implementation of the health pass is required: as soon as the measures are implemented, the employer must inform the CSE thereof, and this shall trigger the consultation period of one month.
– When an employee refuses to be vaccinated or to present a health pass and the parties find themselves in a blocked situation after having exhausted all the solutions proposed by law (temporary assignment to a position not subject to the obligation to present a health pass, or telework), common law procedures concerning employment contracts may apply.
– The suspension of the employment contract of a staff representative for failure to present a valid health pass shall have no effect on their mandates. The employee can continue to exercise them. “To reconcile freedom of association and compliance with the obligations provided for by law, the employer can adjust the methods of exercising social dialogue; in particular by facilitating remote exchanges.”
– The suspension of the employment contract for failure to present a valid health pass shall not postpone the expiry of the CDD.
COVID-19: Work-related interviews.
The Ministry of Labor states as a reminder that, in order not to incur a penalty, employers must hold the summary work-related interviews, which take place every six years, before 30 September 2021 (Q&A of the ministry of labor, updated as of 21 June 2021).