The spread of COVID-19 and the resulting uncertainty about its future impact has led companies and their officers (regardless of their sector) to put in place measures to avoid or limit the spread of the virus. These measures are necessary to avoid future liability, even if, as a force majeure, the primary source of the epidemic is obviously not attributable to the companies.
Infected employees or those at risk of infection could seek the criminal and/or civil liability of their employer, or even of its officers. Furthermore, third parties subject to the risk of infection by a company’s employee may also consider taking legal action against a company.
Companies and their officers run a lower risk of criminal or civil liability if they adopt the measures required by the French government and the Ministère du Travail (Ministry of Labour). It is the government’s responsibility to provide for these measures. This is particularly important in circumstances where the authorities have not taken general containment measures.
- What are the potential criminal offences?
In theory, companies and their officers are subject to a duty of safety. They must therefore take all necessary measures to protect the health of their employees.
If a company “deliberately” violates a duty of safety imposed by any statute or regulation, it will incur a criminal liability when such a violation:
- Subjects employees to an immediate risk of death or injury likely to cause permanent infirmity
- Causes harm
Such violation constitutes a reckless endangerment of others, which is an aggravating factor in determining the punishment for several offences, including unintended offences against life or physical integrity, a series of offences that differ depending on the damage caused and its seriousness.
These offences are punishable by one to three years’ imprisonment and by fines of €1,500 to €45,000.
Companies may face a fine equal to five times the maximum amount of any fine applicable to their officers. Additional penalties may also be imposed, such as a prohibition on practising the professional activity in which the offence was committed.