As regards meetings of staff representatives:

• Until the end of the state of health emergency, it is possible to organize meetings by videoconference (beyond the limit of three annual meetings at the employer’s initiative), conference call, or if the option of a videoconference or conference call is not practicable or a collective agreement signed at the company’s level provides for it, instant messaging. The procedures for holding meetings by videoconference, conference call or instant messaging will be specified by future decree.
• The staff representatives must be consulted (and not just informed) in the event that the employer uses the derogations provided for by the ordinance of March 25, 2020 regarding annual leave, reductions in working time (“RTT”) days, maximum working hours and Sunday rest days. However, consultation may take place following a decision by the employer. The staff representatives must express their views within one month following the date the employer uses the derogations.

2. Remuneration

Ordinance no. 2020-385 contains provisions on the exceptional purchasing power bonus (the so-called “Macron 2020 bonus”) and on optional profit-sharing agreements (“accords d’intéressement”).

As regards optional profit-sharing agreements:

• Agreements signed between January 1 and August 31, 2020 may be concluded for a period of time of less than three years and at least one year.
• Any premiums distributed under these agreements benefit from a favorable tax and social security regime even if the agreements are signed after the first day of the second half of the calculation period following their effective date.

As regards the Macron 2020 bonus:

• It is no longer necessary for an employer to be covered by an optional profit-sharing agreement in order to be able to enjoy the favorable tax and social security regime applicable to the Macron 2020 bonus.
• Companies covered by an optional profit-sharing agreement on the date of payment of the bonus will benefit from the higher tax and social security ceiling applicable to the Macron 2020 bonus (i.e., €2,000, up from €1,000, per employee).
• The ordinance provides that employees who are now eligible for this bonus are those bound by an employment contract (i) on the date of payment of the bonus; (ii) on the date the agreement is registered with the French labor authorities; or (iii) on the date the employer signs off on its unilateral decision.
• There is a new criterion that allows the employer to vary the amount of the bonus in recognition of the working conditions during the COVID-19 pandemic.
• The bonus must be paid no later than August 31, 2020 (instead of June 30, 2020).

3. Occupational health services

Ordinance no. 2020-386 provides for the following to apply, until a date to be determined by a future decree to be published no later than August 31, 2020:

• Occupational physicians may recommend and, if necessary, renew a work stoppage in case of infection, or suspicion of infection, with COVID-19 and may carry out tests for COVID-19 (the associated protocol to be defined by an order (arrêté)).
• Medical examinations conducted by an occupational health service as of March 12, 2020 may be postponed until December 31, 2020 at the latest, unless otherwise indicated by an occupational physician. A decree will be published outlining the process applicable to such medical examinations. Where applicable, postponement of the visit does not prevent the hiring or return to work.

4. Professional training

Ordinance no. 2020-387 amends certain provisions of the Professional Future Law of September 5, 2018 to deal with the economic, financial and social consequences of the COVID-19 pandemic. In particular:

• If a professional meeting (entretien professionel) to discuss an employee’s professional career should have taken place before March 7, 2020, it can be postponed by the employer until December 31, 2020.
• Apprenticeship and professional training contracts whose term runs between March 12 and July 31, 2020 may be extended without the beneficiary having completed the corresponding training courses due to postponements or cancellations of training or exams. An amendment to the initial apprenticeship or professional training contract may extend it until the corresponding training course is completed.

5. Representation of trade unions in small companies and rulings of French employment tribunal judges

• The next elections of staff representatives, which are intended to gauge the representation of trade unions in companies with fewer than 11 employees, will take place in the first six months of 2021, during a period of time to be determined by a specific order of the French minister of labor.
• The next date for the election of judges to the French employment tribunals must be determined by a joint order of the minister of labor and minister of justice. This date cannot be later than December 31, 2022. The judges’ current terms are therefore extended until that date.

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

Client Alert 2020-218