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4/10/2020

Legal News: COVID-19 and the employer’s obligations

An employer who maintains business activity with employee presence during a pandemic must implement a number of measures to protect employees and preserve his own responsibility.

The prevention measures depend, in particular, on the risk assessment carried out which must be integrated into the professional risk assessment document (Document Unique d’Evaluation des Risques Professionnels – DUERP). If necessary, the prevention plan must also be updated with the companies concerned.

I. The minimum measures to be implemented are, first of all, an appropriate notice when the conditions for the transmission of COVID-19 are met in the context of the work carried out by the employee.

A notice reminding of the “barrier gestures” can be downloaded online at the following address : https://solidarites-sante.gouv.fr/IMG/pdf/affiche_gestes_barrieres_fr.pdf.
It is also important to remember what to do if the first signs of infection appear. Here again, a notice is available at this address: https://solidarites-sante.gouv.fr/IMG/pdf/spf0b001001_coronavirus_signes_benins_400x600_fr_md.pdf

Regarding the new risks generated by the „restricted operation“ of the company, the employer must ensure that the following measures are put in place:

  • Instructions regarding changes in the layout of the premises (at the sanitary level, in the changing rooms, in terms of signage)
  • Instructions on work organisation: limitation or even prohibition of face-to-face meetings, following the distance rules (1 meter minimum), postponement of non-essential journeys, modified circulation in the workplace, increased activity, reorganisation of production conditions, logistics, reinforcement of teams by temporary workers or, on the contrary, reduced teams, night work, limitation of the number of supervisors, ….
    • For example, in the delivery sector, adapting the job of deliverymen implies supplying them with hydroalcoholic gel to enable them to clean their hands between each delivery, authorising deliveries at which the packages are put on the ground in the presence of the customer without handing them directly to the customer and replacing the signature by a photo of the customer with his package.
    • In the retail sector, in addition to the hydroalcoholic gel, open only every second checkout and ask customers to go through an empty line to collect their purchases and install Plexiglas walls at the checkouts when the minimum distance measurement of 1 meter cannot be maintained.
    • In the logistics sector (factory, loading…), in addition to the hydroalcoholic gel, space out workstations to avoid crowding (marking on the ground or physical barriers), team rotation after cleaning common areas. Have a single person load and unload trucks by making sure that he or she has mechanical assistance, and divide up breaks to reduce crossings and crowding among employees.
    • Training and informing employees assigned to a new position.

Generally speaking, the employer must ensure that all employees are fully informed and have understood these measures.

II. The question of using an outside company also implies the implementation of preventive measures. It is, of course, recommended to avoid situations of coactivity that are likely to favour the transmission of the virus.

If coactivity cannot be avoided, the prevention plan should be adapted to the situation in order to take into account the prevention measures related to COVID-19.

Thus, if specific prevention measures are established by the employer, the host company, these measures must be integrated into the prevention plan.

For example, if several external companies work on site, it can be planned that they work after one another and not all at the same time. It is also advisable to promote the observance of “barrier gestures” by putting up an increased amount of notices and by making hydroalcoholic gel available at the points where external companies pass each other (toilets, changing rooms, catering facilities, first aid rooms, etc.).

III. The issue of compulsory training should also be addressed. While distance learning is possible for some training courses, a certain number of security training courses (Certificate of Fitness for Safe Driving (Certificat d’aptitude à la conduite en sécurité – CACES), Certificate of Fitness for Work in Confined Spaces (Certificat d’Aptitude au Travail en Espaces Confinés – CATEC), etc.) do not allow for distance learning because face-to-face teaching is essential.

It is advisable to contact the training organisations to register applications for trainings and to keep proof of these applications. Of course, current circumstances lead to a certain flexibility in the deadlines for training courses.

IV. The issue of the maintenance of work equipment must also be addressed. Under the terms of Article L4321-1 of the Labour Code:

„Work equipment and means of protection put into service or used in establishments intended to receive workers shall be equipped, installed, used, adjusted and maintained in such a way as to preserve the health and safety of workers, including in the event of modification of such work equipment and means of protection.”

Thus, the employer must ensure a regular maintenance of the equipment to ensure the safety of his employees.

During the lockdown period, some companies or control offices maintain their activity and interventions for urgent checks which allow for a continuity of service. It is advisable to contact directly the company usually carrying out the periodic checks to find out whether an intervention is possible.

If the checks cannot be carried out, it is up to the employer to determine, under his responsibility, whether the equipment can continue to be used without risk. If this is not the case, the equipment must be shut down.

At the current stage, the exceptional circumstances oblige all those involved to adopt a certain flexibility as regards the due dates for trainings of the employees concerned.

In any event, the employer remains the guarantor of the safety and security of his employees.

V. What about the employee’s right of withdrawal? According to the terms of article L4131-1 of the Labour Code:

„The worker shall immediately alert the employer of any work situation which he has reasonable grounds to believe presents a serious and imminent danger to his life or health, as well as of any defect he notices in the protection systems.

He may withdraw from such a situation.

The employer may not prompt a worker who has exercised his right of withdrawal to resume work in a work situation still presenting a serious and imminent danger resulting, in particular, from a defect in the protection system.”

It should, first of all, be made clear that the right of withdrawal is aimed at a specific work situation and not at a general pandemic situation. Thus, if the employer has implemented the provisions of the Labour Code and the national recommendations aimed at protecting and ensuring the safety of his employees, which he has informed and prepared, the individual right of withdrawal does not apply in principle.

Furthermore, it should be stressed that, under the terms of article L4122-1, each employee must take the necessary steps to safeguard his or her own health and safety and that of others. Employees must therefore inform their employer if they suspect having had contact with the virus.

VI. The emergency law of 23 March 2020 to deal with the COVID-19 epidemic includes provisions relating to health and safety at work:

  • Possibility to be exempt from compliance with the rules regarding paid leave. The employer may impose or unilaterally modify the dates for taking a part of the paid leave up to a maximum of six working days. The employer may also impose days of reduced working hours.
  • Possibility to allow companies in sectors particularly necessary for the security of the nation or the continuity of economic and social life be exempt from compliance with the rules of the Labour Code and the provisions of labour agreements relating to working hours, weekly rest and Sunday rest.
  • Possibility to adjust the way in which the occupational health services perform their duties and defining the rules for monitoring the health of workers who have not been able to benefit from the visits provided for in the Labour Code due to the epidemic
  • Possibility to modify the arrangements for informing and consulting employee representative bodies, in particular the Social and Economic Committee (CSE – Comité Social et Economique), to enable them to deliver the required statements within the given time limits.

 

Jessika Da Ponte                                                                                          10th April 2020

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