20 November 2020
Client Alert | France | Employment Law
Initially published on 31 August 2020, the French Government has been regularly updating the national health protocol, which is meant to serve as a guide for employers on the measures they need to implement in order to ensure the health and safety of their employees in the context of the Covid-19 pandemic.
Subsequent to the announcement of the second lockdown during the presidential address of 28 October 2020, the protocol was updated on 29 October 2020, and then on 13 November 2020.
The purpose of the present article is to provide an overview of the modifications made through these two updates.
Telework is now "the rule", in such a way that:
In compliance with regulatory conditions, employers can offer screening tests to any and all voluntary employees. This screening concerns "authorized rapid testing", i.e. the so-called "antigen" tests.
These screening actions must be entirely financed by the employer and carried out in conditions that guarantee the proper execution thereof together with the strict respect of medical confidentiality, thus implying that the test results must not be communicated by the employer.
On the other hand, the protocol recalls that the implementation of serology testing campaigns by companies is currently not an option.
The updated protocol includes another new feature: the employer must inform the employees of the existence of the "TousAntiCovid" application and of the relevance of its activation during working hours.
Audio and video conferencing must constitute the rule while in-person meetings must remain an exception.
Social events involving the presence of employees in the workplace are "suspended".
Prior to the 13 November 2020 update, the protocol indicated that, within the scope of the terms and conditions of implementation of the protection measures within the company, the employer must notably pay special attention to "workers at risk of contracting serious forms of Covid-19".
The updated protocol replaces this notion, indicating that the employer must pay special attention to "vulnerable individuals identified in Decree no. 2020-1365 of 10 November 2020 as being at risk of contracting serious forms of Covid-19", and expressly refers to the aforesaid decree, which provides the precise list of individuals considered "vulnerable".
To date, no sanction exists in the event of the employer's non-compliance with the recommendations of the national health protocol, given that the protocol (i) only serves as a recommendation tool and (ii) does not ensue from a law or decree.
This lack of normative value was confirmed by:
This is also what expressly emerges from the latest circular sent out by the Directorate-General of Labor on 3 November 2020 "relative to the guidelines and the terms and conditions for labor inspection within the scope of the lockdown entered into force on 30 October 2020", which:
Thus, while lacking normative value in the strict sense of the term, the protocol is designed to serve as a "reading grid" for labor inspectors and possibly judges, in case of litigation. This is why compliance with the protocol's recommendations is strongly recommended in order to avoid any risk for the employer of being charged with failing to comply with its safety obligation, as set forth in Articles L.4121-1 et seq. of the French Labor Code.
♦ ♦ ♦
Gide's Employment practice group is available to answer any questions you may have in this respect. You may also get in touch with your usual contact at the firm.
This legal update is not intended to be and should not be construed as providing legal advice. The addressee is solely liable for any use of the information contained herein and the Law Firm shall not be held responsible for any damages, direct, indirect or otherwise, arising from the use of the information by the addressee.
► Please find here all contributions by our lawyers to help you understand the measures taken following the extension of the state of public health emergency, and their impact.