Version updated on 8 April 2020
In order to face the economic, financial and social consequences linked to the spread of the Covid-19 epidemic, the law no. 2020-290 of 23 March 2020 authorizes the French government to implement various adjustments of positive law, by way of ordinances, notably in the field of labour law.
It is in this context that Ordinance No. 2020-323 of 25 March 2020 (Ordonnance Congés et RTT – Ordinance on paid vacation and RTT days) was published in the Official Journal of 26 March 2020, effective immediately.
It provides for several urgent measures relative to paid vacation, rest days and working time.
Article 1 of this Ordinance authorizes the employer, within the scope defined by an industry-wide or company agreement, to impose dates for accrued days of paid vacation, including before the period of availability during which such days can usually be taken, or to modify the date(s) of paid vacation already requested by the employee:
- within a limit of 6 days of paid vacation maximum;
- over a period going up to 31 December 2020;
- subject to compliance with a notice period of one full day minimum.
The company or industry-wide agreement can also authorize the employer to split the paid vacation days and set such dates without having to accept simultaneous paid vacation dates for spouses or partners under a civil pact of solidarity working in the same company.
Failing such an agreement, it is recalled that Article L.3141-16 of the French Labour Code, the provisions of which have not been amended by the Ordinance on paid vacation and RTT days, makes it possible for an employer to modify the order and dates of paid vacation, subject to complying with a notice period of one month before the scheduled paid vacation date, save in exceptional circumstances justifying a shorter notice.
When justified to protect the company in the face of economic difficulties caused by the Covid-19 outbreak and subject to compliance with a notice period of one full day minimum, the employer can unilaterally impose or modify the dates of the compensatory rest days under the 35-hour workweek (RTT days), of rest days set forth under a fixed working time arrangement and rest days corresponding to rights paid into a time savings account.
The total number of days imposed or whose date(s) can be modified is limited to 10 days over a period going up to 31 December 2020.
As a temporary and exceptional measure, Article 6 of this Ordinance provides for the possibility for companies “in the activity sectors particularly essential to the Nation’s security and to the continuity of economic and social life” to derogate from the public order rules regarding:
- the maximum daily duration of work, which can be increased to 12 hours a day;
- the daily duration of rest, which can be lowered down to 9 consecutive hours, subject to granting subsequent compensatory rest equivalent to the duration of rest of which the employee has been deprived;
- the maximum weekly duration of work, which can be increased to 60 hours a week.
In order to implement one or several of these exemptions, the employer must inform both the Works Council (Comité social et économique -CSE) and the Direccte (Direction Régionale des Entreprises, de la Concurrence, de la Consommation, du Travail et de l’Emploi - Regional Directorate for Companies, Fair Trading, Consumer Affairs, Labor and Employment) without delay and through any means.
Furthermore, in application of Article 7 of this Ordinance, companies coming under these activity sectors can also derogate from the rule on Sunday rest, by granting weekly rest shifts.
A decree shall determine the sectors concerned, as well as the granted exemption categories, it being specified that these exemptions shall cease to be in force on 31 December 2020.
PRIOR INFORMATION OF THE WORKS COUNCIL AND A POSTERIORI CONSULTATION
Ordinance No. 2020-389 of 1 April 2020 relative to the emergency measures taken regarding staff representative bodies provides for prior information of the CSE but, by way of derogation, its consultation may be carried out a posteriori within one month of this information when the employer implements at least one of the following measures:
- imposition of rest days (“RTT” days, rest days set forth under a fixed working time arrangement and rest days corresponding to rights paid into a time saving account) or modification of their dates for rest days already requested;
- derogation on maximum working times or Sunday rest in certain sectors of activity.
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