France: A Guide to Prevent Collapse During Coronavirus

Emily Kuhnert March 19, 2020

We have gathered information on what measures you can take as an employer to help preserve your employees while keeping your business intact. As more information comes in, we will update this post.

If you have any questions on the impact of Coronavirus on labor laws, visit our Linkedin AMA post and leave us your questions in the comment section and we will reply.

[AMA] Impact of Coronavirus on Labor Laws

Updated: March 24, 2020 

Employers must ensure that employees are adequately protect the safety and health of their employees. This includes making arrangements to reduce risk as well as provide information on hygiene.  Otherwise, the employer may be liable.

Employees who are considered high risk (i.e. they came back from abroad, were in contact with an infected person) and must go in to quarantine are able to provide their employer with work cessation through the regional healthcare authority (ARS).  The same guidelines for sick leave in this instance is applicable.  If an employee has one of the following conditions, they are able to take advantage of this benefit:

  • A pregnant person
  • A person who has a chronic respiratory disease or chronic breathing issues
  • A person with Multiple Sclerosis
  • A person with heart issues
  • A person with diabetes
  • A person who suffers from hypertension
  • A person who has kidney failure
  • A person with immune-depression such as HIV or an auto-immune disease
  • A person who with liver disease
  • A person who suffers from obesity

Right of withdrawal- If an employee feels that they are in grave danger, by law, they are able to leave their work station and refuse to return.  The employer is not able to take any action against the employee, including withholding pay.  However, this employee right can only be used in very specific cases, and if the employee does abide what is set out by the law, it is possible for the employer to take action against the the employee.

Updated: March 19, 2020

Remote Working

By principle, remote work cannot be imposed by a company and is according to the employee’s voluntary basis.

However, article L.1222-11 of the Labor Code states that in exceptional situations such as a health crisis or force majeure, employers can impose remote working without any prior formality to ensure the continuity of the company’s activity and protection of the employee.

Partial Unemployment

The French Ministry of Labor has decided that in order not to penalize employers, companies will be given the right to enact partial unemployment (chômage partiel), with retroactive effect, in cases of reduction or suspension of work activity. Partial unemployment allows the temporary suspension or reduction of  the employee’s hours while providing them with pay and preventing the need for layoffs.

During this period, employees on partial unemployment will receive an hourly allowance paid by the employer equal to 70% of the gross salary they would have received if they had worked full time

The employer receives a compensatory allowance each month, funded by the government, equal to:

  • € 7.74 per non-working hour in companies with 1 to 250 employees
  • € 7.23 per hour in companies with more than 250 employees

As an exceptional measure due to the coronavirus, the allowance paid to the employee will be exempt from employee and employer social security contributions. However, the allowance remains subject to the CSG at the rate of 6.2% and to the CRDS at the rate of 0.50%.

The Ministry of Labor is giving employers 30 days to fill out the Partial Unemployment application. From the date of receipt of the request, the Ministry of Labor has 48 hours (temporarily reduced from the usual 15 days) to notify of their response via a dedicated website.

To apply, employers must complete this online form.

Leave of Absence

In the event that an employee cannot work remotely due to a child under the age of 16, employees can be placed on a leave of absence (arrêt de travail) and compensated.

Employers must notify leave of absences using the form called ‘attestation de garde d’enfant à domicile’ which can be found here.

Employers must request from the employee a certificate in which he/she agrees to be the only parent who requests this leave of absence benefit and for each child must provide the name, age, school name, school address and duration for which the school is closed. The employee must inform the employer as soon as the school reopens.

A daily allowance will be paid without a waiting period for the duration of the closure of the child’s school.

More information about this type of leave is available in French here.

Delaying Payment of Social Contributions and Taxes

All companies facing difficulties due to the coronavirus pandemic are able to request that social contributions payments be postponed.  The set up will include the need to grant new deadlines for the payment of social security contributions and any late penalties will be waived during this period.

A request can be made here.

Companies can also request to postpone their tax payment deadline by visiting this website.

Employer and Employee Rights & Obligations Q&A

Source: Baker McKenzie

1. Are employees obliged to disclose themselves as a “risk-factor” to the employer?

  • The French government had initially indicated that it was only “recommended” for employees to inform their employer if they have flu symptoms or if they visited the crisis area within the past 14 days. The authorities have now recently emphasized the fact that employees must inform their employer of any situation that could present a risk for other employees’ health.
  • Employers should nonetheless be aware of employees’ right of privacy and only request strictly necessary information. It is recommended to ask employees to voluntarily disclose such information whilst insisting on the reasons for the request for such information (to protect the workforce). Indeed, since employees have

2. Can the employer demand employees to disclose themselves as being a “risk-factor”?

  • Due to data privacy requirements this should be carried out with caution. However, since the employer has an obligation to protect its employees (and employees also have a similar obligation), it seems possible for the employer to invite employees to disclose such information in order to protect other employees. Health information should not be requested and employees should be invited to contact the appropriate authorities.

3. Can the employer issue an instruction (or a policy) requiring employees to report co-workers with flu symptoms (i.e., fever, cough, difficulty breathing, pain in the muscles, tiredness) to the employer?

  • No, for data privacy reasons this would not be recommended. However, again since both employees and employers have an obligation to protect other employees, employees could be more generally invited to raise any health and safety concerns they may have in the workplace.
  • Employees should also be reminded that everyone should take all possible measures to protect their own health and others.

4. Can employees refuse to come to work? 

  • Employees can only refuse to come to work if there is a clear risk for their health and safety for example if there is a confirmed Coronavirus infection in the work place and the employee’s place of work is in close proximity to where the infected employee was located (i.e., same open space office) and the workplace has not been cleaned.
  • Employees have a right to retreat from a situation that they perceive to be dangerous (“droit de retrait”) if the employer has not implemented all prevention and preventive measures. Therefore, it is essential to inform and train employees.
  • The Ministry of Labor insisted that work from home is strongly recommended when the employee’s position allows it.
  • Moreover, the French President announced on 16 March 2020 that a general confinement of the entire population for at least 15 days as of noon of 17 March 2020 with a requirement to avoid leaving home except when strictly necessary; however travel to work is authorized. We are still waiting for confirmation on what this means exactly for all employers.

5. Can employees refuse to attend meetings or to travel?

  • Currently, it is recommended not to travel to certain regions (see: https://www.gouvernement.fr/info-Coronavirus). Note that the EU (and Schengen) borders are temporarily closed. The government has recently indicated that employees would have a right to use their right to retreat if the employer does not comply with the government recommendations. In addition, due to the general confinement, only essential business trips should be carried out and all meetings should be by video conference when possible.

6. Can the employer send employees on suspension from work? 

  • If an employee qualifies as a “risk factor” based on the criteria set out in the response to item no. 1, the employer is obliged to implement work at home (preferably) or ensure that the employee avoids meetings/ confined spaces / fragile persons. If this is not possible, it is possible to ask the employee to remain home.
  • The employee would need to continue to work if possible (e.g., from the home office) unless sick.
  • On 9 March 2020, the Ministry of Labour, while insisting that work from home is the preferred solution when the employee’s position allows it, proposed examples of exceptional circumstances where partial activity would be possible in the context of the Coronavirus epidemic: administrative closure of an establishment, prohibition of public demonstrations following an administrative decision, massive absence of employees who are essential to the company’s activity, temporary interruption of non-essential activities, suspension of public transport by administrative decision and decrease in activity linked to the epidemic.
  • The French government has simplified the conditions for temporary activity or temporary unemployment (“activité partielle”) in order to assist companies if they need to shut down or reduce their activities temporarily.
  • Partial activity can take two different forms:
  • a reduction of the employees’ working time below the legal weekly working time
  • a temporary closure of all or part of the establishment
  • In case of implementation of temporary activity or temporary unemployment (“activité partielle”), employees who suffer a loss of remuneration should benefit from an allowance paid by the employer equal to at least 70% of their previous gross remuneration.
  • To accompany the payment of the allowance, the employer can benefit from a lump-sum allowance co-financed by the State and UNEDIC unemployment authorities which currently amounts to EUR 7.74 per hour for companies employing between 1 and 250 employees and EUR 7.23 for companies employing more than 250 employees. The Minister of Labour, announced that the partial activity allowance reimbursed to employers in companies with less than 250 employees should be increased by Decree to EUR 8.04. The Minister of Economy and Finances more recently indicated that the government is prepared to significantly increase this allowance.
  • A government decree is expected shortly.

7. When is the employer forced to shut down its operations?

  • Only if there is evidence that the place of work presents a significant risk for employees’ health and safety or if operations cannot be continued due to the lack of personnel.
  • This decision should preferably be made in consultation with local health authorities (e.g., medecine du travail), employee representatives and local State authorities.
  • Employees have a right to retreat from a situation that they perceive to be dangerous (“droit de retrait”) if the employer has not implemented all prevention and preventive measures.
  • Since 15 March until 15 April 2020, most (non-food) stores and establishments open to the public are closed by government order. However, outside of these cases, there is no prohibition to work. However continuation of work in the premises is only possible when work from home is not an option (and when necessary “barrier measures” can be implemented to ensure employees’ safety).

8. Does the employer have the obligation to report infections occurring in the business to the health authorities?

  • We are aware of no legal provision, therefore in theory, only medical staff and doctors who become aware of an infection are required to report to the health authorities. However in practice, it is recommended that the employer reports the situation to the local health authorities (e.g., medecine du travail) and local State authorities – A.R.S.) whilst complying with employees right to privacy.

9. Can the employer require an employee to see a doctor?

  • No, the employer can only recommend that the employee see a doctor. If the employee refuses, the employer can call the French emergency authorities.

10. If employees are sent on suspension from work, or refuse to come to work or if an operation is being shut down, do the employees still need to be paid?

  • Where possible, it is recommended to implement work from home.
  • In case of a legitimate lock out, suspension from work or shut down, the employee would need to be paid. However there are certain government financial assistance schemes in case of temporary “unemployment” as previously mentioned above.

For more details see our complete payroll and benefits guide to France