Definition of the right of withdrawal
When the work situation presents a serious and imminent danger to his life or health, the employee may leave his workstation or refuse to settle there without the employer's agreement, pursuant to Article L.4131-1 et seq. of the Labour Code. The right of withdrawal may also be exercised collectively (Cass. soc., 22 Oct. 2008, No. 07-43.740).
It was against this backdrop that on Sunday, March 1, employees at the Louvre who felt threatened by the coronavirus - Covid 19 epidemic exercised their right to opt out.
Right of withdrawal and crisis situations
The Questions/Answers of 28 February 2020 published by the Ministry of Labour states that in a crisis situation, the possibilities of recourse to the exercise of the right of withdrawal are severely limited once the employer has taken the necessary preventive and protective measures in accordance with the Government's recommendations (https://www.gouvernement.fr/info-coronavirus).
It is recalled that during the H1N1 influenza pandemic episodes, the government had issued two circulars: DGT n°2007/18 of 18 December 2017 relating to the continuity of private sector activity in the event of a flu pandemic and DGT n°2009/16 of 3 July 2009 relating to the flu pandemic.
It is useful to refer to it since it states that: "(...) In the current context, including in phase 6 of the national plan, insofar as the employer has implemented the provisions of the labour code and the national recommendations, aimed at protecting the health and safety of his staff, and has informed and prepared his staff, particularly in the context of staff representative institutions, the individual right of withdrawal cannot, in principle, be exercised. Indeed, the preventive measures, prudence and diligence of the employer deprive of object the exercise of a right of withdrawal which would be based solely on exposure to the virus or the fear it generates. (...) Everyone is therefore called upon to take responsibility on the question of the right of withdrawal. "
However, these circulars cannot be invoked against judges, who retain their sovereign power of appreciation.
Limits on the exercise of the right of withdrawal
The right of withdrawal must be exercised in such a way that it cannot create for another person a new situation of serious and imminent risk (L. 4132-1 of the Labour Code).
In the event of legitimate exercise of the right of withdrawal
The employer may not force an employee to return to work, and no sanctions or deductions may be imposed on him or her.
In case of improper exercise of the right of withdrawal
The employee exposes himself to a salary deduction for non-performance of the employment contract, or even a real and serious cause for dismissal, under the control of the judge.