What Covid-19 has (temporarily) changed in labor law

What Covid-19 has (temporarily) changed in labor law
This summary takes into account the changes introduced in labor law through March 31, 2020.
Themes Sub-themes Measures taken
Short-time work[1][2] Cases of recourse to short-time work
  • The companies concerned by the shutdown order dated March 14, 2020;
  • Companies facing a reduction of their activities as a result of:
    • the economic situation
    • difficulties in the supply of raw materials or energy
    • a calamity or exceptionally bad weather conditions
    • a conversion, reorganization or modernization of the company,
    • Any other circumstances of an exceptional nature.
  • Companies confronted with the impossibility of taking the necessary preventive measures to ensure the protection of employees' health (barrier gestures, teleworking).
Deadlines for declaring the short-time work The company may submit the application within 30 days of the placement of its employees in short-time work when the request is justified by exceptional circumstances (health crisis).
Direccte's response delays (Directions régionales des entreprises, de la concurrence, de la consommation, du travail et de l’emploi i.e. Regional directorates for enterprises, competition, consumption, labour and employment) The timeframe for an express or tacit acceptance of all requests submitted for preliminary authorization is reduced from 15 to 2 days until December 31, 2020. Failure of a decision within this timeframe will constitute implicit acceptance of the request.
Compensation for short-time work
  • Full coverage by the French State of the allowance normally paid by companies to their employees in short-time work, up to 4.5 SMIC;
  • Indemnity amounting up to 70% of the gross salary of employees in short-time work;
  • Minimum indemnity of 8.03€ per hour, whatever the number of employees in the company;
  • Indemnity equal to 100% of the remuneration of employees in short-time work when they are at the SMIC (minimum wage).
The compensation cannot exceed 31,97€ per hour or 4.849,16€ for a whole month without work. Beyond that, the compensation is at the expense of the employer. On Tuesday 31 March, the Minister of Labor announced an exemption from social security contributions and taxes on the complementary amount that an employer would pay to its employees in short-time work so that they receive 100% of their salary. This measure would be retroactive to 1 March 2020 (ordinance/decree to be published on this point)[3].
Extension of the eligible employees’ categories These new categories of employees can benefit from the short-time work:
  • Nursery Assistants;
  • Domestic Workers;
  • Sales Representatives;
  • Flat-rate managers.
  • Employees working on the French territory, affiliated to a French social security system, whose company has no establishment in France but contributes to the French National Unemployment Insurance;
  • Employees covered by an equivalent scheme;
  • Employees under an apprenticeship or professionalization contract.
Part-time employees The hourly rate of the short-time work allowance paid to part-time employees may not be less than the hourly rate of the SMIC. Otherwise, the hourly rate of the short-time work allowance paid to a part-time employee shall be equal to his or her hourly rate of pay.
Apprentices and professionalization contracts Apprentices and employees holding a professionalization contract are entitled to a short-time work allowance equal to their remuneration prior to the short-time work.
Protected employees Provided that the short-time work affects all employees of the enterprise (establishment, department, workshop), the short-time work is binding on the protected employees without the agreement of the enterprise.
Rules for conversion into hours and hourly wages (flat-rate managers, sales representatives) (Decree to be issued)
Methods of reimbursement by the State (Decree to be issued)
Consultation of the CSE (Comité social d'entreprise i.e. Company Labor Committee) The company shall consult the CSE and submit a report to the Direccte within two months when applying for the benefit of the short-time work scheme on the grounds of an "exceptional disaster or adverse weather conditions" or "any other exceptional circumstances".
Extension of the maximum period of validity of the authorization The company may have recourse to a short-time work for a maximum period of 12 months instead of six months.
Centralization of requests From April onwards, the company should be able to submit a single application for short-time work involving several establishments.
Paid leave, RTT, time savings account[4] Change in the take-up of paid leave By industry-wide or enterprise agreement:
  • The company will be entitled to impose or split up the taking-up of a maximum of six working days of paid leave, i.e. one week of paid leave, including any leave already scheduled by the employee;
  • With a notice period of at least one clear day.
Change in the RTT (réduction du temps de travail i.e.  working time reduction) days The company may impose or modify, by unilateral decision, the RTT days acquired by the employee subject to a prior notice period of one clear day, within the limit of ten days.
Change in the rest days for employees with a flat-rate days off The company may impose or modify the days and half-days of rest for employees on a days-only basis over the year by giving one clear day's notice, up to a maximum of ten days.
Using the Time Savings Account The company may require that the rights allocated to the employee's time savings account be used by taking rest days, subject to one clear day's notice and within a limit of ten days.
Hours of work Processing of requests for exemption from standard working hours handled by the Direccte[5]
  • The relevant Direccte is the one situated in the company's head office district, regardless of the location of the employees involved;
  • The Direccte must verify that the request for exemption has an obvious link with the Covid-19
  • In the event of an incomplete application, the Direccte must immediately inform the company. It may not refuse this application on the sole ground that it is incomplete;
  • When the company consists in more than one establishment, the decision rendered by the Direccte must be transmitted to the staff representatives of the above-mentioned establishments as well as to their respective Direccte.
Exemption to working hours[6] Companies operating in sectors essential to the security and the continuity of economic and social life of the Nation[7] may derogate from standard working hours as follows:
  • Maximum daily working time up to 12 hours;
  • Maximum daily time worked by a night worker up to 12 hours. The night worker must be given a compensatory rest equal to the amount by which the initially scheduled 8 hours are exceeded;
  • Reduced daily rest time up to 9 consecutive hours. The employee must be granted a compensatory rest equal to the duration of the rest that he was unable to take
  • Maximum weekly duration up to 60 hours;
  • Weekly duration calculated over 12 consecutive weeks up to 48 hours;
  • Weekly duration of the night worker calculated over 12 consecutive weeks up to 44 hours.
These derogations differ depending on the sector of activity. A decree to be published must specify the outlines of these exemptions[8]. If these derogations are applicable, the company must inform the both the CSE and the Direccte.
Derogation from Sunday rest In the case of companies operating in sectors necessary for the security and the continuity of economic and social life of the Nation, Sunday rest may be allocated on a rotational basis.   A priori, logistics companies should be concerned by this possibility of derogation, without having to be provided for by a decree[9].
  Derogation from weekly rest[10] Weekly rest may be suspended "in the event of urgent work, the immediate performance of which is essential to organize rescue measures, to prevent imminent casualties or to repair damages to the equipment, installations or buildings of the establishment". Employees must be given compensatory rest for a period equal to the rest that has been suspended. The work inspector must be informed.
Compensation Incentives, profit-sharing[11] Payment of amounts due in respect of profit-sharing and incentive schemes in 2019 may be postponed by the companies until December 31, 2020.
A so-called “Exceptional Purchasing Power Bonus” or “Macron Bonus” Payment of a bonus of up to EUR 1,000 for employees working during lockdown:
  • This bonus shall be exempt from social security charges and taxes;
  • Companies with more than 250 employees must set up a profit-sharing agreement in order to pay it to their employees;
  • Bruno Le Maire announced that the obligation to set up a profit-sharing agreement to pay this bonus would be suspended for companies with fewer than 250 employees.[12]
Occupational Safety and Health Arrangements adopted by the occupational health services regarding the follow-up of the employees' health status [13]
  • The occupational physician may postpone all scheduled medical visits unless they are essential;
  • For employees working in sectors of activity essential to the continuity of the Nation's life (transport, energy, food, agri-food, telecommunications, logistics), awareness and prevention visits, aptitude and recovery visits are maintained. They may be carried out by teleconsultation with the agreement of the employee;
  • Workplace actions are postponed, except in emergency situations such as investigations for serious or fatal workplace accidents, in the event of inability proceedings.
Other measures should be provided for by ordinance or decree in the near future.
Company's security obligation [14] The company must, in this context: · Carry out a workplace risk assessment; this new risk assessment shall be reflected in a consolidated risk assessment document (document unique d’évaluation des risques). · Determine, based on this risk assessment, the most relevant preventive measures (teleworking, work organization and social distance rules, provision of equipment such as screens or distance from counters, informing employees and raising awareness, cleaning of premises, limiting meetings, etc.); · Consult the CHE on these issues; · Seek the advice of the occupational physician whenever possible; ·  Respect and enforce the barrier gestures recommended by the health authorities.
  Right to refuse unsafe work Once the enterprise has implemented all the governmental recommendations (barrier gestures etc...) and the provisions set out in the Labor Code aimed at protecting the health and safety of employees, the right to retire should not apply.
  Special groups of employees The Ministry of Labor has made available online fact sheets for employers such as delivery drivers, cashiers and workers employed in bakeries, to reduce the risk of Covid-19 contamination[15].
Work disruptions Quarantine · Employees in a state of quarantine subsequent to an exposure to a potential or confirmed case of Covid-19 or after a period in a high-risk area are entitled to up to 20 days compensated time off work, without any conditions for entitlement or waiting period. · This work disruption is prescribed by a doctor from the Regional Health Agency (ARS).
Daily allowances[16] Daily allowances will be paid to employees who have been absent from work due to the Covid-19 epidemic (quarantine, childcare, illness), with no seniority requirement, without having to justify this absence within 48 hours or to be treated on French territory.   They will be paid without a waiting period.
Extension of employee beneficiaries Daily allowances will be paid to employees working at home, seasonal and intermittent workers and temporary employees.
Vocational Training Employees in training[17] Employees in short-time work following a training course will receive an hourly allowance of 70% of their gross pay, and not 100% as is the case in normal times.   This rule applies to training courses that have been granted by the company after March 28, 2020.
Conditions for the payment of contributions for vocational training Decree to be published
Coverage of training costs Decree to be published
Distance Learning[18] . In the event the training can continue its normal cycle within the framework of distance learning, the trainee must be in possession of the equipment necessary for its proper conduct. In this case, the employee must continue to receive his remuneration, or the corresponding allowance if he is in partial employment; · For employees who are planning a career transition project (PTP): o    If the trainees are unable to carry out their training activities due to the closure of the training institution, they may be redirected to another open organization; o    If a transfer to another organization is not possible, the employee must submit a request for early return to his or her employer, temporarily, while the training institution is closed; o    On the other hand, if the PTP is carried out by the employee after the end of his employment contract, it falls to the Transitions pro associations to maintain the trainee's remuneration during the period of suspension of the training.
Training cancellation[19] Training cancellation requested since 12 March 2020 by CPF holders are justified by a case of force majeure. Costs incurred in this respect must be reimbursed and training entitlements mobilized under the CPF must be re-credited
  FNE (National Employment Fund) Agreement This is an agreement concluded between the Direccte and a skills provider (OPCO), open to companies in an extended period of under-activity or in complete cessation of their activity; . This agreement cannot be combined with the short-time work;The activities envisaged are those allowing to obtain a professional diploma registered in the national directory of professional certifications or another qualification recognized in the categories listed in the collective agreement applicable to the company;These activities are implemented during the employee's working hours.The State may allocate to the companies aid of up to 50% of the "eligible costs" of the training, or 70% in the event of an increase;The employee must remain in his or her employment for the duration of the training plus six months.    
CSE Consultation Dematerialized consultations CSE consultations may be carried out through paperless means, such as videoconferencing An order should specify this arrangement.
Consultation cases and missions .  In companies with at least 50 employees, the CSE shall be consulted in respect of requests for exemption from working hours; .  In all companies with an CSE, the latter is consulted on the use of short-time work; .  The CSE shall be consulted in the event of a serious event linked to the activity of the company or at the motivated request of two of its members relating to the health, safety and working conditions of employees; . The CSE has a right of alert.  
Staff Representatives Dismissal procedure for protected employees[20] The procedure for requesting the authorization to dismiss protected employees is temporarily amended: · The documents produced by the employer for the request for authorization to dismiss protected employees will not be consulted in situ by the employee, but will be sent by the work inspector by post or email with acknowledgement of receipt; · A written and contradictory inquiry procedure is to be preferred: the work inspector sends the parties a registered letter with acknowledgement of receipt, inviting the protected employee to make his written comments and the employer to provide additional documents. · Hearings may also be conducted by videoconference or telephone; · Once the documents have been sent and the hearings held, the investigation will continue by email exchanges.  
TPE (Micro-Entreprises) Elections Initially scheduled to run from November 23 to December 8, 2020, the government has modified the organization of the TPE poll, with a change in the definition of the electorate.   A decree or order should specify the outline of this arrangement.   For the record, the submission of trade union candidatures and the constitution of electoral lists should normally be in progress.
CSE (Comité social d'entreprise i.e. Company Labor Committee) elections Elections, scheduled during the lockdown period are suspended.
Unemployment   Compensation for jobseekers[21] An extension of unemployment insurance entitlements is provided for jobseekers whose entitlements expire between March 13, 2020 and July 31, 2020.   A decree to be published will specify the duration of this extension[22].
Professional safeguarding contracts (CSP) To implement the CSP, Pôle Emploi, despite the current health crisis, provides support and assistance to the employees concerned, mainly through adapted services via the Internet or telephone.
Relations with Pôle Emploi (support to job seekers during lockdown)[23] · Support to job seekers is provided via the pole-emploi.fr platform; ·  Appointments scheduled between job seekers and Pôle Emploi are cancelled and can be replaced by telephone or email exchanges; · Job search controls are suspended during the period of confinement.
Employee mobility Documentary proof of travel in France The company issues a travel document, which is valid for the entire duration of the lockdown measures. This certificate does not have to be renewed every day[24].
Cross-border workers .  Cross-border workers who cannot work at a distance may travel to their place of work and cross borders; .  The conditions allowing eligibility for affiliation to the social security and tax systems, i.e. exercising no more than 25% of their activity in the territory, are suspended in this case of force majeure.
Foreign Workers Residence permits[25] All residence permits expiring between March 16 and May15, 2020 may be extended for a maximum of 90 days.   An order or decree should specify this arrangement.
Specific sectors Construction companies[26] Construction companies are entitled to continue their activity during the shutdown period. However, the Ministry of Labor reminded that barrier gestures and social distancing must be applied.
Interim entertainment workers Calculation of the reference period from March 15, 2020 until the end of lockdown period is suspended for: .  The opening of unemployment insurance entitlements; .  The calculation and payment of unemployment insurance benefits.   These measures ensure, on the one hand, that interim workers in the entertainment industry who are unable to work during the lockdown period will not be penalized and will therefore be entitled to unemployment benefits, and on the other hand, that those reaching the end of their entitlement will continue to be compensated.
Social security contributions Deferral of employee and employer contributions[27] Employers with at least 50 employees with URSSAF's due date on the 5th of each month may defer all or part of their contribution payments due on April 5, 2020. This deferral, without penalty, may be extended over a period of up to 3 months. Despite this postponement, the electronic reporting system for employers (déclaration sociale nominative) must be established before Monday, April 6, 2020 at noon.
  [1] Order n°2020-346 of March 27, 2020 on emergency measures for short-time work [2] Decree n°2020-325 of mars 25, 2020 relating to short-time work [3] https://www.usinenouvelle.com/editorial/on-vous-explique-le-nouveau-coup-de-pouce-au-chomage-partiel.N948171 [4] Order n° 2020-323 of March 25, 2020 on emergency measures relating to paid leave, working hours and rest days [5] DGT Instruction [6] Order 2020-323 of 25 March 2020 on emergency measures relating to paid leave, working hours and rest days [7] Sectors defined by a decree to be published [8] Different derogations depending on the sector, defined by a decree to be published. [9] R. 3132-5 of the Labour Code [10] https://travail-emploi.gouv.fr/actualites/l-actualite-du-ministere/article/coronavirus-questions-reponses-pour-les-entreprises-et-les-salaries ; L. 3132-4 of the Labor Code; R. 3172-6 of the Labor Code [11] Order n°2020-322 of 25 March 2020 temporarily adapting the terms and conditions for the allocation of the additional compensation as well as the deadlines and terms and conditions for the payment of sums paid as profit-sharing and incentive schemes [12] Article 7 of the Social Security Financing Law for 2020 [13] DGT Instruction of 17 March 2020 [14] https://travail-emploi.gouv.fr/IMG/pdf/covid19_obligations_employeur.pdf [15] https://travail-emploi.gouv.fr/actualites/l-actualite-du-ministere/article/coronavirus-covid-19-fiches-conseils-metiers-pour-les-salaries-et-les [16] Order n°2020-322 of 25 March 2020 temporarily adapting the terms and conditions for the allocation of the additional compensation as well as the deadlines and terms and conditions for the payment of sums paid as profit-sharing and incentive schemes [17] Ordonnance n°2020-346 du 27 mars 2020 portant mesures d’urgence en matière d’activité partielle [18] https://travail-emploi.gouv.fr/IMG/pdf/20200317_qr_coronavirus_moncompteformation.pdf [19] Cf. point 9 [20] DGT Instruction of 17 March 2020 [21] Order n°2020-324 of 25 March 2020 on emergency measures for replacement income [22] Decree to be published [23] https://www.huffingtonpost.fr/entry/pole-emploi-ce-que-le-confinement-implique-pour-les-chomeurs_fr_5e79dab8c5b62f90bc512175 [24] https://www.gouvernement.fr/sites/default/files/contenu/piece-jointe/2020/03/justificatif-deplacement-professionnel-fr.pdf [25] Order No. 2020-328 of March 25, 2020 extending the period of validity of residence documents [26] https://travail-emploi.gouv.fr/actualites/presse/communiques-de-presse/article/covid-19-continuite-de-l-activite-pour-les-entreprises-du-batiment-et-des [27] Acoss press release of March 23, 2020     [interne id="107457"] [interne id="44146"]
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