The protocol specifies the measures to be taken by employers to deal with the COVID-19 pandemic (section 1 below). These preventive measures are all the more important as the employer has an enhanced safety obligation towards its employees and any failure to implement the measures could have serious consequences (section 2 below).
- Measures recommended by the government to ensure the health and safety of employees at work
a. Employer measures to protect employees
The protocol recommends that employers first take company-wide measures to protect employees, including working from home, staggering shifts and disinfecting premises.
With this in mind, employers are encouraged to give priority to home working, which should, under the terms of the protocol, “remain the rule”. During his speech on the government’s end of lockdown protocol, French Prime Minister Édouard Philippe said that “home working must be continued wherever possible” and asked companies to continue with home working, where possible, until 2 June at the earliest.
However, having to work from home can cause significant risks for employees, including stress, burn-out and, more generally, all forms of work-related issues. Employers must therefore also take measures to ensure the health and safety of home workers.2
When the presence of employees in the workplace is necessary, employers are advised to carry out activities in sequence and introduce staggered shifts in order to limit the risk of crowds and to comply with social distancing rules.
To this end, the government has adopted certain criteria to set the maximum permissible occupancy of floor space in the workplace, with the minimum space per person being set at 4 m² to allow them to work simultaneously in the same place in compliance with physical distancing rules, and the workspace available when employers make an assessment being the total floor area less the area occupied by shelving, storage space, racks, etc.
Employers are also encouraged to introduce plans to control employee traffic, such as one-way systems in workshops, corridors and staircases, if the lay-out of the premises allows this. These plans should also be applied when someone, such as a service provider, visits the company.
The employer must also ensure that its premises and any surfaces that employees regularly come into contact with, such as door handles, tables, desks and stair banisters, are regularly cleaned.
Finally, the employer must inform its employees of the risks of infection, remind them of ‘barrier gestures’ and social distancing, and train them in the use of personal protective equipment. This information can be provided by any means, in particular by posting notices, sending regular emails to staff or setting up employee support committees.
b. Individual measures to protect employees
When company-wide measures are collectively insufficient to ensure health and safety, the end of lockdown protocol provides that they must be supplemented by individual measures to protect employees such as wearing masks.
In our opinion, however, the precautionary principle should lead companies to require employees and external service providers to wear masks even when the collective measures taken appear to be sufficient.
Moreover, recent history shows that legal and regulatory provisions have not always been sufficient to ensure the health and safety of employees. In the current situation, and while respecting the guidance in the protocol, employers therefore have a particular interest in adapting these provisions to the reality of their activities, the lay-out of their premises, etc.
In this respect, it should be noted that employers have a responsibility to inform employees on how to wear masks, to ensure the supply of single-use masks, and also to provide an enclosed space for their disposal under the strictest conditions.
c. Other aspects of the end of lockdown
The end of lockdown protocol provides for an outright ban on the wholesale screening of employees and specifies that employers are not allowed to test employees even though they may discourage those with COVID-19-related symptoms from coming to the workplace.
Employers may nonetheless check the temperature of employees when they enter company premises. However, in such event, the possibility of this must be provided for in their internal regulations under article L.1321-5 of the French Labour Code and notified to the Social and Economic Committee (CSE) and the Labour Inspectorate. The measure must be proportionate to its objective and offer all required guarantees to the employee concerned, in terms of both informing the employee in advance and not retaining their personal data. Moreover, the French data protection authorities, CNIL, have enjoined employers to “refrain from systematically ... collecting information relating to the search for possible symptoms presented by an employee/agent and his/her relatives”.3
Finally, employers are encouraged to draw up an emergency preventive procedure for the immediate care of individuals who present symptoms in the workplace or who are asymptomatic. This procedure should, for example, allow infected employees to be promptly isolated in a dedicated room or for them to be urged to go home and contact their doctor.
- Obligation to prevent the risk of COVID-19 infection
These preventive measures, as we have already pointed out, are all the more important as the employer has an enhanced safety obligation towards its employees and any failure to implement the measures could have serious consequences.
a. The risk of harm resulting from anxiety
Compliance with preventive measures in the fight against COVID-19 is essential at this time since, as the virus has not gone away, employees may, in many cases, find returning to work to be a source of anxiety.
It should be borne in mind, that under article L. 4121-1 of the French Labour Code, employers must take appropriate measures to protect employees from the risk of COVID-19 infection.
This safety obligation requires the employer to respect, and ensure that its employees respect, health and safety rules. Failure to comply with this obligation may result in the employer being held liable and having to pay compensation to its employees for harm caused by anxiety.
Indeed, following a decision of the Plenary Assembly of the Court of Cassation dated 5 April 2019, the High Court rules that “it is necessary to admit, in application of statutory rules governing the employer's safety obligation, that an employee who can prove exposure to [a noxious or toxic substance], generating a high risk of developing a serious pathology, may take action against his employer for failure to fulfill his safety obligation” (emphasis added).4
In such a case, the burden of proof lies with the employee, who must provide evidence of their exposure, the high risk of developing a serious illness, the employer’s failure to fulfill its safety obligations and, finally, the personal harm suffered as a result of exposure.
The fact remains, however, that a significant risk now hangs over the employer, who can only be relieved of its liability if it can demonstrate that it has complied with its legal safety obligations and, in particular, has taken protective and preventive measures against the risks referred to in articles L. 4121-1 and L. 4121-2 of the French Labour Code.
In this respect, it may be important to directly involve the employees or their representatives, and also the CSE, in minimising the risk of infection from COVID-19.
b. The risk of accidents at work and occupational diseases
Compliance with preventive measures in the fight against COVID-19 is also important because, in some cases, COVID-19 infection could be recognised as occurring in the workplace and so be qualified as a work accident or occupational disease.
It should be remembered that an occupational disease differs from a work accident because of the slow and progressive nature of the onset of the disease whilst at work. By contrast, an accident requires there to be a specific and sudden event. This makes it more difficult to qualify COVID-19 infection as a work accident.
The difficulty of identifying with certainty the source of an infection, which can also take place outside working hours or the workplace, may make it more difficult to qualify a COVID-19 infection as a work accident, especially since, as the Institut Pasteur notes, “the incubation period is on average 5 days, with extremes of 2 to 12 days, [that] the symptoms gradually develop over several days, unlike the flu, which starts suddenly [and that] the first symptoms are not very specific: headaches, muscle aches, tiredness. Fever and respiratory signs [occur] secondarily, often two or three days after the first symptoms.”5
However, it should not be forgotten that an accident occurring during the working day in the workplace is presumed to be a work accident unless it can be established that the cause of the injury was totally unrelated to work, which in practice is often impossible to prove.6
Qualification as an occupational disease may be more straightforward, even if the French Primary Health Insurance Fund will first have to seek the opinion of a Regional Committee for the Recognition of Occupational Diseases, as COVID-19 is not included in the official list of recognised occupational diseases.
The coronavirus is transmitted by invisible droplets that are projected when a person speaks, coughs or sneezes or by hand contact with surfaces on which the virus may be deposited with the hand then coming into contact with the face without first being washed.
An employee may therefore be exposed to the risk of COVID-19 infection in the course of their work.
However, unlike certain musculoskeletal disorders, blood diseases caused by benzene or lesions caused by aromatic amines, which require prolonged exposure, it is sufficient for the employee to establish that they have been regularly exposed to the risk of COVID-19 infection for the illness to be presumed to be of occupational origin.
The difficulty for the employer will therefore be, once again, to demonstrate that the employee has not been regularly exposed to the risk of COVID-19 infection.
Throughout the duration of the pandemic, it will be particularly difficult to establish a causal link between an infection, a place and a time, unless a contagious outbreak occurs in the workplace. It is just as difficult to establish that the cause of the infection is totally unrelated to work. This issue of causality is essential and will be important to consider in assessing whether an accident or disease has an occupational origin.
The employer must therefore be very attentive to its employees’ working conditions and, above all, prevent any risk of infection from COVID-19.
c. The risk of gross negligence of the employer
Employees may still invoke the employer’s failure to fulfil its obligations related to prevention and take action against the employer on the basis of its gross negligence, pursuant to the provisions of articles L. 452-1 et seq. of the French Social Security Code.
Above all, any such action will imply that the employee’s COVID-19-related accident or disease is recognised as being occupational in nature.
The employer will, of course, be able to contest the occupational nature of the accident or disease, COVID-19 being a contagious disease which can be contracted at any time and in any place, and not only in the workplace.
The employer may also contest the employee’s allegations and argue that it could not have been aware that it was exposing the employee to the risk of infection from COVID-19 given the employee’s duties and the preventive measures taken in the company. However, in this respect, it is important to note that gross negligence might be presumed if the employee requested to exercise their right to work remotely and if there is a risk of COVID-19 infection.
It should also be pointed out that some people are now asking the government to create a COVID-19 Victims Compensation Fund similar to the one created for asbestos and, faced with such a possibility, there arises the question of how this fund might be financed by employers and what measures the fund might have recourse to against employers.
With the above in mind, and in view of the legal and medical risks and uncertainties associated with COVID-19, we cannot emphasise enough the importance of employers complying with all government measures and ensuring their effective implementation within the company.
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
- Ministry of Labour, national end of lockdown protocol for companies to ensure health and safety of employees, 3 May 2020.
- http://www.reedsmith.com
- CNIL notice, “Coronavirus (COVID-19): reminders from the CNIL on the collection of personal data” (6 March 2020).
- Cass. Ass. Plen. 5 April 2019, No. 18/17442 (5 April 2019), published in the “Bulletin” ; Cass. Soc., No. 17-24.879 to 17-25.623 (11 September 2019).
- https://www.pasteur.fr
- Cass. 2e civ., No.18-19160 (11 July 2019), published.
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