Obligation to take the necessary measures to ensure the workers’ safety and protect their physical and mental health
It falls on the employer, as part of its obligation to provide a safe workplace to its employees, to take the necessary measures to ensure the workers’ safety and protect their physical and mental health, in particular:
- the precautionary measures set out in Articles L.4121-1 and L.4121-2 of the French Labor Code (precautionary measures, information and training programmes, implementation of an appropriate organization and means); and
- if the employer is informed of the existence of a confirmed risk to its staff (as a result, for example, of the contamination of a company employee), the immediate measures appropriate to put an end to it (Supreme Court, Labor Div., 25 November 2015, no. 14-24444; Supreme Court, Labor Div., 1 June 2016, no. 14-19702).
In this context, the measures must be adapted and proportionate to the risks likely to result from the various situations in which the company's staff is required to work.
At the very least, it is necessary to:
- ensure the employees' strict compliance with health and social distancing measures, known as "barriers" ("barrières"), defined at national, regional and/or local levels, warranting in particular to limit interactions with other employees present to what is strictly necessary;
- widespread recourse to telework, when the employees' work allows it and when they are equipped with the necessary tools;
- consider a rotation of essential functions when employees cannot work from home;
- inform employees by widely sharing good practices and ways of organizing work during this period.
In any case, it is advisable to:
- update the single risk assessment document (SRAD), with regard to the change of circumstances and the resulting precautionary measures, in accordance with Article R.4121-2 of the French Labor Code;
- inform and consult the works council (Comité social et économique -CSE), in accordance with Article L.2312-8 of the French Labor Code, on the significant modification of the work organization resulting, on the one hand, from the draft plan for the continuation of business being contemplated by the company and, on the other hand, from the precautionary measures taken by the employer pending its adoption.
Article L.2315-4 of the French Labor Code authorizes the use of videoconferencing to hold works council meetings, either if agreed between the employer and the elected members of the works council's staff delegation or, in the absence of an agreement, for a maximum number of three meetings per calendar year. Articles D.2315-1 and D.2315-2 of the French Labor Code determine the conditions under which the works council may, in this context, hold a secret ballot.
Securing travel and commuting arrangements for employees who cannot work from home
According to the terms of Decree no. 2020-260 of 16 March 2020 regulating travel and commuting as part of the fight against the spread of the Covid-19 virus ("décret n° 2020-260 du 16 mars 2020 portant réglementation des déplacements dans le cadre de la lutte contre la propagation du virus Covid-19"), are prohibited throughout the country, from 17 March 2020 at 12:00 noon until Tuesday 31 March 2020:
- all trips outside one's home, for any person;
- with the exception of trips for one of the following five reasons, subject to being able to justify that the trip in question falls within the scope of one of these exceptions:
- journeys between the home and the workplace(s) and business trips that cannot be postponed;
- trips to purchase supplies necessary for work purposes and purchases of basic necessities in establishments authorized to remain open pursuant to the Order of 14 March 2020 (amended by the Orders of 15 and 16 March 2020) on various measures to combat the spread of the Covid-19 virus;
- trips for health reasons;
- trips for compelling family reasons, to assist vulnerable persons or for childcare;
- short journeys, close to home, for the needs of individual physical activity of persons, excluding practicing sports collectively, and for the needs of pets.
Breaches of these rules are punishable by a maximum fine of up to €750 (Decree no. 2020-264 of 17 March 2020 creating a fine punishing the violation of measures intended to prevent and limit the consequences of serious health threats to the health of the general population (décret n° 2020-264 du 17 mars 2020 portant création d'une contravention réprimant la violation des mesures destinées à prévenir et limiter les conséquences des menaces sanitaires graves sur la santé de la population); Article 131-13 of the Criminal Code).
The template certificate of derogatory travel published by the Ministry of Interior (template downloadable from the following page of the Ministry of Interior website: link) also confirms that authorized travel includes "travel between the home and workplace, when it is essential for the exercise of activities that cannot be organized in the form of telework (on permanent proof) or professional travel that cannot be postponed".
In light of these factors, continuity of business within the company can be ensured:
- by promoting telework as much as possible, when the tools and business allow it;
- otherwise, by keeping employees, whose jobs cannot be carried out through telework, within the company's premises, subject to taking, in their regard, the following measures:
- the precautionary measures provided for in Articles L.4121-1 and L.4121-2 of the French Labor Code (precautionary measures, information and training programmes, implementation of the appropriate organization and means) and proportionate to each situation, according to the risk (at least respecting "barrier" gestures (gestes barrières), specific information notices, reinforced and regular cleaning of the premises, etc.);
- in the event of confirmed contamination of a member of staff, immediate measures to put an end to the risk to other employees (cleaning of floors and surfaces likely to be contaminated, etc.).
In order to enable employees to prove that their home-to-work commute is indeed an authorized case, we recommend that they have with them at all times:
Where necessary, this template is adaptable to the specificities of the company's business and to the terms and conditions retained within the framework of the business continuity plan set up in the context of Covid-19.
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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.