Psychosocial risks correspond, according to the France’s institute for the prevention of occupational accidents and diseases (INRS), to “work situations in which are present, concomitantly or not:
- Stress: Imbalance between the perception a person has of the constraints of his work environment and the perception he or she has of his own resources to cope with them;
- External violence: Insults, threats, aggression committed in the context of work by people outside the company;
- Internal violence: Moral or sexual harassment, exacerbated conflicts between two or more people of the company.”1
These risks can be induced by the activity itself or generated by the organization and work relations. According to the INRS, “there are no ready-made solutions to address psychosocial risks; from one company to another, from one work situation to another, the psychosocial risks factors are different. Solutions should therefore be sought for each company after an in-depth assessment or diagnosis of its own psychosocial risks factors. The collective prevention approach, centred on work and its organisation, is to be favoured.”
It is therefore up to employers to be vigilant and to prevent psychosocial risks that could result from telework.
- The employer is subject to a safety obligation of result even for teleworkers
Article L. 1222-9 of the French Labour Code provides that “telework means any form of work organization in which work that could also have been performed on the employer's premises is carried out by an employee outside those premises on a voluntary basis using information and communication technologies”.
In general, the employer is bound towards his employees by a safety obligation of result, and as such, must take the necessary measures to ensure his employees’ health and safety.2
Moreover, the French Labour Code expressly provides that the employer has the same obligations regarding prevention of occupational risks for all employees, including teleworkers.3
For example, an accident occurring during teleworking is presumed to be an occupational accident under Article L. 411-1 of the French Social Security Code.4
The employer may obviously dispute the occupational nature of the accident, but in practice it is difficult for it to demonstrate that the accident occurred outside working hours or the workplace, or that it was due to a cause totally unrelated to work.
The obligation to prevent occupational risks also raises issues relating to the risk of occupational diseases.
No tables of occupational diseases concerning injuries related to psychosocial risk currently exist. However, a disease, even if not listed in a table of occupational diseases, may be recognised as occupational by a French Regional Committee for the Recognition of Occupational Diseases (CRRMP), when the disease leads to death or permanent partial disability in at least 25 percent of cases, and when a direct and essential link is established between the pathology developed by the employee and his or her usual work.
Moreover, under French Law No. 2015-994 of 17 August 2015, Article L. 461-1 of the French Social Security Code expressly provides that psychological pathologies may be recognized as being of occupational origin.
In this respect, a French Decree of 7 June 2016 on improving the recognition of mental pathologies as occupational diseases and the functioning of the CRRMPs, has strengthened the medical expertise of the CRRMPs by providing them, where necessary, with the abilities of a university professor-hospital practitioner specialised in psychiatry, when cases of mental illness are studied.
Finally, apart from the recognition of occupational diseases regime, it is important not to overlook, as previous examples have shown, that the criminal liability of employers can be sought even in extreme situations such as the suicide of an employee occurring at home.
- Employers' duty of vigilance
The employer will therefore have to be vigilant during the lockdown and take into account the elements below in order to best ensure their employees’ health and safety:
- Work-life balance: During lockdown, the time balance between the employee's private life and his professional activity can be disrupted, as the employee may have to share his workspace with his family and, where appropriate, his children
- The risk of burn-out linked to hyper-connection to work: Due to distance, some employees may have to participate in numerous conferences, meetings and calls and therefore not disconnect from work.
- Goal-related stress: The employee, who may not be a regular teleworker, is likely to be less productive than when they are face-to-face, which can be stressful for him.
- The risk of isolation: Not going to work, anxiety caused by the COVID-19 situation and other material difficulties may reinforce this risk.
In addition, employers are reminded that all employees have the right to disconnection, even during telework, with the same rights as the employee who works on the company’s premises.
This right to disconnection allows any employee to be permanently unreachable, outside working hours, regarding work-related matters in order to protect his or her rest time and his right to respect for private and family life.
- The need for employers to set up preventive measures
It is important for employers to note that the occurrence of an occupational accident or the recognition of an occupational disease can have very significant financial consequences for the company.
In the metallurgy industry, for example, an occupational accident or disease causing permanent partial disability greater than 40 percent or death leads to the allocation of €645,626 in 2020.5
However, there is also a risk of recognition of inexcusable fault of the employer, if the employee or his beneficiaries establish that the employer new or should have known of the danger to which he exposed the employee and that he did not take the necessary protection measures.
The resulting safety obligation that weighs on the employer by extension is in large part a duty of prevention, so the employer therefore must take all necessary measures to protect the employees’ health and safety.
In order to prevent psychosocial risks developed during lockdown, the following measures could be set up by the employer:
- Ensure active communication and information within the company to avoid isolation of employees.
However, the employer must avoid over-communicating and adding stress to a situation that could already create anxiety for the employee.
- Remind employees of their rights to disconnection and good practice in this area.
The employer and employee can agree on working hours to get a better work-life balance.
- Train and raise awareness among managers.
The employer can remind managers of the need to hold regular meetings with their employees, in order to discuss the organisation and workload, which must be reasonable and adapted to the situation of the different employees.
The duty of prevention still requires, and this aspect should not be overlooked, that employers update the single risk assessment document, incorporating the risks that may arise from the introduction, or not, of telework during the health emergency period.
Finally, it should be borne in mind that the risk of developing psychological pathologies will be just as high during the progressive ending of the lockdown period. Indeed, the COVID-19 epidemic will not be over and the risk of being contaminated will still exist, whether at the workplace or during the journey time between home and workplace.
This period could be all the more difficult to deal with as teleworking could continue to be used, at least partially, or as employees could be forced to travel or work on staggered working hours, which could amplify the development of these risks.
The employer must therefore remain vigilant during this period as well, and take the necessary measures to ensure his employees’ health and safety and to avoid as far as possible any “imbalance between a person's perception of the constraints of their working environment and their perception of their own resources for coping with them.”6
Our Reed Smith Coronavirus team includes multidisciplinary lawyers from Asia, EME and the United States who stand ready to advise you on the issues above or others you may face related to COVID-19.
For more information on the legal and business implications of COVID-19, visit the Reed Smith Coronavirus (COVID-19) Resource Center or contact us at COVID-19@reedsmith.com
- INRS, «Risques Psychosociaux, Comment agir en prévention ? » (“Psychosocial Risks, How to prevent them ?”), ED 6349, April 2020
- Article L. 4121-1 of the French Labour Code
- Article L. 1222-10 of the French Labour Code
- Article L. 1222-9 of the French Labour Code
- French Order of 27 December 2019 on the pricing of occupational accidents and diseases risks for the year 2020
- INRS, « Risques Psychosociaux, Comment agir en prévention ? » (“Psychosocial Risks, How to prevent them ?”), ED 6349, April 2020
Client Alert 2020-263
