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On 8 May 2020, the Ministry of Labour published a National Protocol for Employers to Ensure the Health and Safety of the Employees after the End of the Lockdown (the “National Protocol”).The National Protocol contains specific rules taking into consideration certain activities and job roles (e.g. employees working in shops, in logistics). The Ministry of Labour has also drafted specific regulations for employees working from home as employers are strongly encouraged to continue allowing employees to work remotely where possible. Employers should become familiar with guidance published by, among others, the Ministry of Labour, in addition to any relevant sector-specific bodies (such as trade associations or trade unions) and professional organisations.
The Employers’ Obligation to Ensure Health and Safety at Work
French employment law requires employers to protect the health, safety and welfare of workers by preventing, informing/training and by adapting the work organization and means.
Employers must be able to prove that they have made their best efforts to achieve this.
In the COVID-19 context, the Ministry of Labour has indicated that, subject to the judges’ sovereign power, employers should not be held liable in the event they have properly followed the recommendations and regulations shared by the Ministry of Labour.
Note that the Social and Economic Committee (“SEC” – employee representative body elected in French companies) must be informed and consulted prior to any change in the general running of the company and, since the employers must adjust their organization in a short period of time to face the COVID-19 issue, a governmental decree1 has adapted the deadlines normally enjoyed by the SEC to render an opinion in a shorter period when the consultation concerns decisions from the employer aimed at facing the economic, financial and social consequences of the COVID-19 pandemic. On these aspects and until the end of August 2020, the SEC is supposed to render its opinion within a period comprised between eight days and twelve days (instead of one month to two months for most cases).
The opinion of the SEC will be, in particular, required before adapting the internal regulations (“règlement intérieur”) to include the new regulations deriving from the COVID-19 crisis.
The National Protocol
The National Protocol reminds employers that they must:
- Avoid the exposure of workers to the COVID-19;
- Evaluate the risks that cannot be avoided (through the revision of the Risk Assessment Document, known as “DUER”);
- Favour collective measures to protect employees in priority to individual measures.
In particular, employers must continue to support employees working from home wherever possible; on the contrary, if the workers’ physical presence on site is necessary, the employer must sequence the activities and implement staggered schedules in order to comply with the rules on physical distance.
It is only when the above changes in the organization are not sufficient to guarantee the health and safety of workers that the employer must provide individual protective measures, such as the use of masks.
Employers are, however, not supposed to test or take the temperature of workers except in very specific circumstances and this is subject to specific precautions.
In any case, employers must absolutely involve all relevant parties to define the best actions to fight against the propagation of the virus given the specificities of the company and the activity, such as the labour administration, the occupational medicine services but, above all, the employers ’ social partners (CSE – former works council – and union delegates).2
Finally, workers must be properly informed and trained, on a regular basis, and they should be able to share their concerns with the employer in order to maintain sufficient trust in the company’s ability to continue running a safe work environment.
The main recommendations, measures and actions provided by the National Protocol can be summarized as follows:
The Barrier Measures and Physical Distance
These measures and actions are considered the primary route to succeed in the end of lockdown and restart on business on site.
These measures and actions are as follows: washing hands, not touching the face, using disposable tissues when sick, avoiding shaking hands/hugs, keeping a one-meter distance at least and a four-square-meter around each individual, ventilating rooms, cleaning regularly the objects and surfaces touched, wearing gloves, staying at home when having symptoms evoking the COVID-19 and contacting a doctor and excluding monitoring the temperature of individuals (but inviting individuals to do it themselves).
Recommendations to calculate the maximum number of workers present on site
Employers must respect a gauge of four square metres per person, guaranteeing a minimal distance of one meter around one person. The employer must therefore calculate the maximum number of persons in the premises by using this parameter in light of the entire surface of the premises according to a specific formula.
Exceptionally, when there is a risk of non-compliance with this parameter, complementary measures must be taken such as wearing a mask.
Management of the flow of workers
The employers must implement traffic plans to guarantee the physical distance, managing and avoiding affluence of workers, employees, clients, implementing new rules to use lifts, providing flow directions (entrance and exit) and, more generally, providing new practices to use the premises (e.g. flow in corridors, open doors, break places, meeting rooms, partition walls).
Individual protection equipment
The general rule as regards to individual protection equipment (“IPE”) is to use them, when the collective measures (I to III above) cannot be implemented or are not sufficient to protect the workers. The National protocol outlines that it is difficult to fit IPE correctly, that such equipment gives a false sense of security and that it could jeopardize the proper compliance with the barrier measures and physical distance.
The National Protocol gives additional recommendation to use masks (the different types of masks) and other IPEs such as gloves.
Employers can impose masks and gloves only when the primary barrier measures and physical distance do notapply; otherwise, it can only be optional. The workers must also be provided with a user notice and must receive a training how to use IPEs.
Screening tests
The role of employers in the national strategy for screening individuals affected by the COVID-19 is to keep informing the workers not to access or to leave the premises when sick and to contact a doctor to get a screening test.
The National Protocol reminds that screening test campaigns are not authorized.
Protocol when facing a COVID-19 situation at work
Employers are supposed to implement specific measures to limit the number of contacts with a worker who has symptoms by informing the work doctor and the instructions to clean the workplace as well as to identify the contacts and their quarantine, etc.
Taking the temperature
It is not advisable to take the temperature at the entrance of the premises but it is preferable to ask the individuals to do it themselves (especially, if fever is not systematic in the COVID-19 cases).
If employers still want to take the temperature of people accessing the premises, they must modify their internal regulations and comply with certain rules (in particular, prior information of the employees, preservation of dignity, consequences for accessing the site, absence of data retention).
The following are strictly forbidden:
- Mandatory temperature monitoring of the employees as soon as the temperature data is kept by the company;
- Automatic capture of temperature (e.g., through thermal cameras).
In any case, an employee can validly refuse his temperature to be monitored and the employer who would not allow the employee accessing the premises would be obliged to pay his salary.
Cleaning and disinfection
The National Protocol gives guidance for cleaning the premises after re-opening and on a daily basis, including guidance on when a disinfectant is needed.
1 Decree n°2020-508 dated 2 May 2020.
2 Note that most litigation cases over the last weeks against the re-opening of premises have been launched by unions based on a lack of social dialogue in the company for identifying the proper rules and means to fight the exposure of workers to the COVID-19.
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© 2020 White & Case LLP
