What does the new French lockdown mean for employers?

Decree No. 2020-1310 of 29 October 2020¹ sets up a new lockdown on French territory from 30 October 2020 (and at least until 1 December 2020) and readjusts the sanitary rules for employers.

Working from home "whenever possible"

French employment law requires employers to do their best efforts to protect the health, safety and welfare of workers by preventing, informing, training and by adapting the work organization and implementing adequate procedures.

In the COVID-19 context, the Labor Ministry has indicated that employers should not be held liable in the event they have properly followed the recommendations and regulations shared by the Labor Ministry².

Employment recommendations are mainly contained in a National Protocol for Employers to Ensure the Health and Safety of the Employees (the "National Protocol"), whereby the Council of State ruled that it constituted a set of recommendations for the material reduction in the obligation of security of the employer.³

The National Protocol was amended again on 29 October 2020 due to the new lockdown and provides that employees should be asked to work from home whenever possible. In the current context of the epidemic and taking into account the aforementioned employer's security obligation, the employer can impose remote working on its employees, who cannot refuse.⁴

In the absence of a collective agreement or a remote working policy ("Charte sur le télétravail"), companies should communicate directly with the employees working from home, such as explaining how to monitor working time and workload, and setting out the hours during which the employee must remain reachable.

The employer must always set the rules within the framework of a social dialogue, ensuring that it maintains links within the workforce and, in particular, with isolated remote workers.

When full-time remote working is not possible

If the employees’ physical presence on site is necessary, the employer needs to adjust the work organization to comply with the National Protocol. 

In any case, employers must absolutely involve all relevant parties to define the best steps to take in the fight against the propagation of the virus given the specific requirements of the company and the activity, such as the administration of labour, occupational healthcare services but, above all and if any, the company’s Social and Economic Committee (i.e., the elected staff representatives) that must normally be consulted prior to any material change in working conditions.⁵

Managing the numbers of workers

• Employers must organise work activities and implement staggered schedules to reduce the numbers of people both in the workplace and on public transport.
• The employer must still implement work procedures to guarantee physical distance, managing and avoiding an overpopulation of workers, employees, clients, as well as implementing new rules to use lifts, providing signs to direct the flow upon entry and exit.

Reinforcing the Preventative Behaviours and Physical Distance.

• Employers must regularly remind employees of the need for systematic compliance with the specified preventative behaviours and physical distance requirements, mainly consisting of regular hand washing, using disposable tissues, avoiding shaking hands/hugs, keeping at least a one-meter gap between individuals as well as regularly cleaning objects and surfaces.
• The employers must also inform employees of the existence of the "TousAntiCovid" smartphone application and of the importance of its activation during working hours.

Providing individual protective equipment

• From 1 September 2020, it is mandatory for employers to require their staff to wear masks in shared work places (e.g. open spaces, meeting rooms and corridors) under the National Protocol for the resumption of activity. As an exception, employees do not have to wear the mask whilst alone in their office.
• These masks must be provided by the employer to the employees in addition to social distancing and other preventative measures.

Business travel and meetings

• The only journeys that are authorized are journeys between the place of residence and the place(s) where professional activity is carried out (when teleworking is not possible), as well as business trips that cannot be postponed. These journeys must be justified by a certificate issued by the employer using the templates published by the French government. (interieur.gouv.fr/Actualites/L-actu-du-Ministere/Attestations-de-deplacement-couvre-feu)
• Business meetings should be held via audio and video conferencing and not in person, including when all employees are present on the premises.

Reviewing the organization of company restaurants

• The National Protocol refers to a guide published by the Labor Ministry on 20 October 2020. In any case, preventative behaviours and social distancing must be respected within company restaurants, which may include reorganizing spaces, adapting time slots, ensuring physical distance, keeping a maximum number of 6 guests per table, providing hydro-alcoholic gel, etc.

Offering screening tests (new)

• Employers can now offer screening tests to those of their employees who volunteer for them, in addition to the screening campaigns organized by the health authorities. To this end, the list of authorized rapid tests and their conditions of use have been made available by the health authorities. covid-19.sante.gouv.fr/tests)
• These screening tests must be fully financed by the employer and carried out under conditions that guarantee their proper performance and the strict preservation of medical confidentiality. In particular, no results may be communicated to the employer or its employees.

Facing a COVID-19 outbreak at work

• The National Protocol is supplemented by a guide published by the Labor Ministry on 20 October 2020 (travail-emploi.gouv.fr/IMG/pdf/guide_covid_employeur_v201020.pdf)
• This guide provides that if a "cluster" appears in the company (i.e. if three employees have tested positive for COVID-19 within seven days), the employer must alert the regional health agency (ARS) and the labour inspector. The employer must then follow any instructions and notify the SEC of the cluster. However, the identity of the COVID-19 positive employees should not be specified. Under no circumstances shall the employer: create a list of employees who have tested positive for COVID-19; publish the names of any such employees; keep a record of an employee’s COVID-19 positive result result(s); or force a COVID-19 positive employee to come to work.

Taking temperature

• It is not advisable to take the temperature of individuals at the entrance of the premises, but it is instead preferable to ask the individuals to do it themselves (especially, given that a fever is not intrinsic to all 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 the monitoring of their temperature, and any employer who does not allow the employee to access the premises as a result is still obliged to pay his or her salary.

Cleaning the premises

• The National Protocol gives guidance for cleaning the premises after re-opening and on a daily basis.

_{1 Decree No. 2020-1310 of October 29, 2020 prescribing the general measures necessary to deal with the COVID-19 epidemic in the context of a state of health emergency.
2 Subject to the judges’ sovereign power in case of litigation.
3 Council of State, Order of October 19, 2020, n°444809.
4 Article L.1222-11 of the French Labor Code.
5 Article L.2312-8 of the French Labor Code.}

Cecilia Grosjean (White & Case, Associate, Paris) contributed to the development of this publication.

Find out more about business response to the Coronavirus outbreak:
Coronavirus: Managing business impact and legal risks

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