Anticipating business recovery in France | Littler

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Development of a business recovery strategy

Under the impetus of support measures from the French government, companies favor a partial resumption of activity. However, employers will have to consider to what extent business can resume …that is to say., partial or total reopening of operations. For example, employers will have to decide to maintain a partial activity after quarantine or to modify the hours and schedules of employees (modify or reduce the hours, use part-time work, etc.).

The main challenge for employers is to avoid future layoffs for economic reasons, which would inevitably have a negative impact on morale and litigation. The strategy to end the crisis, if it involves a new demand for partial activity, will necessarily have to integrate the existing work obligations of the company (obligations to preserve employment, carry out training actions, take measures to improve the economic situation, etc.).

Analyze the risks and put in place preventive measures

Given their security obligations, employers must make every effort and take all the necessary measures to manage the risks (in particular psychosocial) linked to the resumption of business, at the workplace or via telework in the context of the COVID-19 crisis.

Employers will have to rely on government recommendations throughout this crisis, but that is far from enough. Litigation to date on this subject, which is likely to multiply, should encourage companies to avoid an unstructured risk assessment and to instead carry out a thorough and organized assessment, which should be carried out by work unit, with employees and employee representatives. as part of a “multidisciplinary” approach.

Focus on temperature controls

The national protocol published by the government concerning the end of company quarantines not recommended (but not forbidden) to check the temperature of employees at the entrance to the workplace. He recommends self-monitoring because COVID-19 infection can be asymptomatic and fever is not a systematic symptom.

The government advises against it but does not ban it. Thus, as part of a set of precautionary measures, a temperature control can be set up at the entrance to the premises, although it is Not mandatory. Employers should announce the implementation of the temperature control process through a memorandum annexed to the company’s internal policies / procedures. Given the urgency of the situation, the procedure may, in accordance with the application of article L. 1321-5 of the Labor Code, come into force immediately.

This memorandum must be communicated to the labor inspectorate, members of the economic and social committee and all employees (by publishing it on the company’s intranet).

According to the latest recommendations of the government, an employer who decides to refuse access to the premises to an employee who refused to undergo a temperature control “May be required to pay the employee the wages corresponding to the lost work day. “

The question of the impact on remuneration is sensitive, however, and the government’s lack of clarification, particularly as regards the consequences of temperatures exceeding the set limit, is a source of legal uncertainty. A less restrictive alternative could be the provision of a forehead thermometer with a disinfection kit that employees could use as they wished.

Maintain social dialogue with employee representatives and involve occupational medicine in the revival of companies

It is essential to involve the members of the Economic and Social Committee, union representatives and occupational health services in the process of business recovery, particularly in terms of risk prevention.

Indeed, the State administration explains that the internal stakeholders of the company (staff representatives and occupational physicians) contribute to the prevention strategy and therefore to the updating of the professional risk assessment document. (DUER), but also to the implementation of preventive measures (circular n ° 6, Department of labor relations (Labor Relations Directorate) of April 18, 2002).

Courts are particularly vigilant in this regard.

Logistics Case (summary order of April 14, 2020 made by the court of justice of Nanterre and confirmed by the court of appeal of Versailles on April 24, 2020).

In addition to the measures and procedures actually implemented, the trial judges ask the employer to disclose the content of the proceedings and the documents presented at the meetings of the Economic and Social Committee concerning preventive measures.

It is therefore crucial for companies to formalize discussions with staff representatives as well as with the occupational health service to demonstrate that preventive measures have been adopted in consultation with these stakeholders.

The Economic and Social Committee has the right to consult on company social policy, working and employment conditions, training initiatives and any major change in health and safety conditions.

Compliance with preventive measures by staff representatives will facilitate compliance by workplaces and thus limit the risks of questioning the measures (work stoppage, right of withdrawal, legal action). Given the context, meetings with the elected members of the Economic and Social Committee can be held by videoconference, conference call or instant messaging.

Reduce the notice and information / consultation times for the Economic and Social Committee on decisions taken by the employer to process COVID-19.

French labor code reference Purpose of time limit Time range
First paragraph of section I and first sentence of section II of article R. 2312-6 Consultation period in the absence of intervention by an expert 8 days
Second paragraph of section I and first sentence of section II of article R. 2312-6 Consultation period in the event of expert intervention 12 days for the central committee
11 days for other committees
Third paragraph of section I and first sentence of section II of article R. 2312-6 Consultation period in the event of the intervention of one or more experts during the consultation with the central committee and with one or more works councils 12 days
Second sentence of section II of article R. 2312-6 Minimum period between the delivery of the opinion of each works council to the central committee and the date on which the central committee is deemed to have been consulted and to have issued a negative opinion One day

Regarding the expertise to be carried out as part of the decisions taken to treat COVID-19:

French labor code reference Purpose of time limit Time range
Article R. 2315-45, first sentence Time available to the expert, upon appointment, to request the employer for any additional information deemed necessary for the accomplishment of his mission 24 hours
Article R. 2315-45, second sentence Time limit for the employer to respond to this request 24 hours
Article R. 2315-46 Time available to the expert to notify the employer of the estimated cost, extent and duration of the expert opinion 48 hours after the appointment of the expert or, if a request has been submitted to the employer, 24 hours after the response of the employer
Article R. 2315-49 Time limit for the employer to refer each of the cases of appeal provided for in Article L. 2315-86 to the judge 48 hours
Article R. 2315-47, first paragraph Minimum time between the presentation of the expert report and the expiration of the time provided for the consultation of the committee mentioned in the second and third paragraphs of article R. 2312-6 24 hours

The reduced consultation periods apply to those from the date of publication of the decree implementing Article 9 of Ordinance 2020-460 of April 22, 2020 (that is to say., May 3, 2020).

However, when the periods which started to run before this date have not yet expired, the employer has the possibility of interrupting the procedure in progress and starting, from this same date, a new consultation procedure in accordance with the rules set out in the aforementioned ordinance.

The reduction of the consultation periods does not apply to the information and consultation procedures carried out under one of the following procedures:

  • the dismissal of 10 or more employees during the same 30-day period;
  • a collective performance agreement;
  • the recurrent information and consultation procedures provided for in Article L. 2312-17 of the Labor Code.

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