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Coronavirus: How should the employer react?

Published on 04 march 2020

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Employment & Labour Law

As a social and collective place, the company is on the front line in the Coronavirus epidemic. What are the employer's obligations when one of its employees is quarantined? How to react to the exercise of the right of withdrawal by an employee or the right of alert by the CSE? Practical information.

While more than 280 cases have just been confirmed in France, and the level of risk goes from "moderate" to "high" in the European Union, according to the President of the European Commission Ursula von der Leyen, the Ministry of Labour has just published a Q&A for companies and employees on the Coronavirus (Covid-19). 

For employers, there are obviously many questions. Here are a few practical recommendations to help them respond to this crisis.

1/ What are the employer's obligations if an employee is quarantined or if an employee is forced to keep his/her child in isolation?

During this winter holiday period, the employer may be faced with an employee returning from a risk area, or an employee facing quarantine due to the quarantine of one of his children.

Is the employer required to maintain wages in this situation?

  • Yes if the employer is able to (i) offer the employee to telework; (ii) ask the employee to take paid leave. If leave has already been taken by the employee for another period in the future, the employer may, pursuant to Article L.314116 of the Labour Code, move it without the employee's consent.
  • Not otherwise, provided that the employee is covered by a work stoppage issued under the conditions described below.

2/ Who pays the salary of the employee placed "in quarantine"?

If none of the measures described above are possible, the employee must contact the Regional Health Agency (ARS) so that an authorised doctor can draw up a work stoppage notice, and thus benefit from the daily allowances paid by the social security system for 14 days without a waiting period in accordance with decree no. 2020-73 of 31/01/2020.

As an example, the Ile de France ARS has published on its website a list of approved doctors and a questionnaire to be filled in to obtain this work stoppage, which should be returned to ars-idf-cvags@ars.sante.fr for employees in the Ile de France region.

The salary supplement paid by the employer in the event of illness will apply under the conventional conditions, as in the case of a "classic" work stoppage.

Thus, during this period the employment contract will be suspended.

Pending the issuance of the work stoppage by the doctor authorised by the ARS, and as long as the employer asks the employee not to report to his usual workplace, he will have to be paid by the company and his period of absence will be assimilated to actual working time. (Question No. 14 of the Questions and Answers of 28 February 2020 published on the website of the Ministry of Labour)

3/ What are the employer's obligations in the event of proven contamination of one of its employees?

In the event of proven contamination, the employer must take all necessary measures to avoid any contamination of other employees, and clean the premises by equipping the persons in charge of cleaning with protective equipment. (Question n°18 of the Questions and Answers of 28 February 2020 published on the website of the Ministry of Labour).

4/ Exercise of the right of withdrawal by one or more employees: how should the employer react?

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.  

5/ Triggering of the right of alert by the CSE: how to deal with it?

When can the right of alert be triggered?

The CSE can trigger an alert to protect the health of employees if it finds that there is a serious or imminent danger. It may decide to trigger the alert following the exercise of the right of withdrawal exercised by one or more employees and record its opinion in the register provided for this purpose.

What are the employer's obligations in the event of exercise of the right of alert by the CSE?

The employer is required to investigate with the representative of the social and economic committee who reported the danger and take the necessary steps to remedy it. (Article L.4132-2 of the Labour Code)

What to do if there is a difference of opinion on whether the danger is real or how to stop it?

The CSE shall be convened as a matter of urgency, within a period not exceeding twenty-four hours, and the employer must inform the labour inspectorate and the officer of the prevention service of the regional health insurance fund, who may attend the meeting of the CSE.

If the disagreement persists between the employer and the CSE, the Labour Inspectorate is immediately contacted by the employer and may either implement a formal notice procedure under Article L4721-1 of the Labour Code, or refer the matter to the interim relief judge under the conditions provided for in Articles L.4732-1 and L4732-2 of the Labour Code.

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