March 4, 2020
Authored by: Sarah Delon-Bouquet
As the Coronavirus spreads on a worldwide level, employers have started to put into place certain measures group-wide, to limit risks of contagion, such as forbidding travel to certain countries (mainland China, South Korea, Northern Italy, Iran and Singapore) or restricting non-essential travel to certain regions (such as Asia). In addition to these measures, employers may quarantine staff which have returned from a dangerous zone or have been in contact with a contagious person.
What rules would apply during the quarantine?
During the quarantine period, the employer can request employees to work remotely if the nature of their work so justifies and if the employee has tools to do so. Certain companies are now requesting their employees to bring back their laptops home daily so that employees are ready to work remotely if they need to be quarantined urgently.
In France, an employer may impose such remote work to all employees who are able to work remotely to ensure business continuity and the employees’ protection, without obtaining their approval and without any specific formalism (a simple email would suffice), in the event of exceptional circumstances, such as the Coronavirus epidemic.
Remote work may also be envisaged if an employee’s children are prevented from going to school and are put on quarantine. In such a case, employees are required to inform their employer thereof and check if they can work remotely.
Would the employer be required to pay the employee during the quarantine if s/he cannot work remotely?
If this measure is imposed by the employer, then the employee should continue to be paid. However, employees who obtain a doctor’s prescription for such isolation measure (or sick leave), are entitled to obtain indemnification from the French social security corresponding to 50% of their salary for up to 20 days, without any waiting period, as provided by French Decree n° 2020-73 of January 31, 2020. Employers should therefore encourage their employees to contact French regional health agencies to obtain doctor’s prescriptions. Note that employers would often need to complete the social security indemnities so that the employee receives his full salary, as provided by many applicable collective labor agreements. (Often, a minimum seniority is required but this condition should be temporarily withdrawn by a new French Decree to be adopted shortly).
What should be done if the employee has the virus?
If employees become sick with the virus, this should be closely monitored as any persons in close contact may also become infected. Further quarantine measures may need to be ordered. The occupational health services should be informed. If the sick leave lasts at least 30 days, the employee will need to schedule a visit with such services to check if the employee is apt to return to work.
Employers should also instruct cleaning services to carefully clean the work place to minimize disease transmission.
What other measures than quarantine can be envisaged?
Alternatively, employers may put into place measures so that employees at risk avoid being in contact with fragile persons (e.g., elderly, pregnant women), for example encouraging videoconferences and avoiding attendance of non-mandatory meetings or large scale events and close contacts (at the cafeteria, in elevators).
Employers in France cannot impose vacation days on their employees but may ask employees who have scheduled vacation to postpone them to another period, given the exceptional circumstances.
They may also impose employees to take certain rest days (so-called “RTTs”) if this is provided by their company or branch collective labor agreement, bearing in mind that usually a prior notice is provided in the event such RTT days are modified.
Can employees refuse to come to work?
Employees who refuse to come to work for fear of infection, without any other valid justification and without justifying their absence, may be disciplined.
Note that employees may be justified in refusing to travel to a dangerous zone. In this regard, French law provides for a right of withdrawal if the employee has a reasonable reason to think that s/he may be exposed to serious and imminent danger for his/her life or health (where there is a risk of death or permanent or prolonged temporary incapacity) and alerts his/her employer thereto. However, this right would be interpreted restrictively in case of an epidemic and would not apply for example to regions where there are only limited cases of coronavirus or if the employer has taken prevention and protection measures.
Can employers can take other measures to temporary close their business or reduce working hours?
So-called “partial activity” schemes can be put into place in France, in the event of exceptional circumstances such as the current epidemic, leading to a potential loss in salary. In such a case, which is strictly regulated by French law and subject to a specific procedure, employees would receive a compensatory indemnity of 70% of the gross salary paid by the employer which would partially compensated by a lump-sum paid by the French government.
Likewise, employers may impose professional training on its staff during this period and receive some subsidies from the French government.
Under certain circumstances, working hours may further be increased, subject to works council consultation and/or labor inspector’s information or authorization.
Do employers otherwise need to buy protective masks or take any other measures?
There are no obligations to do so, unless applicable sanitary or government recommendations mandate certain measures. Employers may envisage reminding staff to maintain hygiene standards, and consider installing hygiene facilities such as hand sanitisers at entry and exit points and enhancing existing office cleaning services within work locations.
In general, employers should be encouraged to prepare a prevention and employee protection plan, which would require works council consultation. Most likely, they will need to modify their so-called “Unique Document” on evaluation of risks. The works council should be involved in any decision impacting health, safety and work conditions. It would also need to be consulted on significant changes to work organization, partial closing of the business or changes in working time or rest periods.
Finally, if employers process data concerning their employees’ health, they will need to ensure they comply with GDPR provisions in this regard.
Bryan Cave Leighton Paisner LLP has a team of knowledgeable lawyers and other professionals prepared to help employers deal with coronavirus related issues. If you or your organization would like more information on such issues or any other employment issue, please contact an attorney in the Employment and Labor practice group.