What risk mitigation efforts should the prudent employer take before employees return to the workplace?
Under Article L.4121-1 of the French employment code, employers have a duty to protect the health and safety of their employees and must provide a safe system and place of work.
But first, employers need to closely consider whether employees need to return to the office or if they should continue to work from home. The rule in this respect is as follows:
- only employees whose duties are not compatible at all with remote working may return to the work premises
- employees whose duties can only be partly performed from home can return to the work premises for a certain number of days per week (as necessary), and the employer must use its best endeavours to concentrate tasks worked on site in order to avoid traveling to the workplace and limit social interactions
- employees whose duties are fully compatible with remote working shall work from home as a principle. However, they are allowed to return to the office one day per week upon request and if authorized by the employer.
Employers shall also carry out a risk assessment involving identifying the risk, deciding how likely it is that someone will be harmed and taking action to eliminate the hazard, or, if that is not possible, controlling the risk. This risk assessment needs to be formalised, and the social and economic works council must be informed and consulted with regarding this document. It is also recommended to involve the occupational health services with respect to the drafting of this document.
This risk assessment should be updated on a regular basis and should take into account any factors that may make employees particularly likely to be infected by the COVID-19.
The French Government website provides general guidance to employers (the COVID-19 portal is available here and a fairly detailed Q&A can be read here), but also more specific advice for six specific sectors of business such as (i) retail stores, hotels and restaurants, (ii) repair maintenance and cleaning services, (iii) production and industries, and (iv) transportation and logistics services (here).
- Consult with the social and economic works council regarding the risk assessment
- Involve occupational health services in the assessment
- Ensure up to date on Government guidance is checked
Who should be involved in the decisions to return to the workplace?
One of the key aspects in determining the risk is to ensure that you have the correct team in place to review the proposals for implementing the return to the workplace. The French Government has provided that each business should designate a COVID-19 representative. In smaller companies, such representative can be the manager. He/she ensures that the measures defined are implemented and that employees are informed of the measures. In any case, HR, Legal, IT and business leaders should also all be involved. The level of steps required will depend on the nature of the business. Employee representatives and occupational health services should be involved in the risk assessment process.
What can the prudent employer do to ensure physical distancing in terms of the work space?
The French Government guidance is that employers should maintain, wherever possible, one metre social distancing between workers, customers and visitors, or 2 meters where face masks cannot be worn by individuals (e.g. when employees take their meals).
It is the employers’ liability to organize workstations and workspaces in such a way to avoid or limit as much as possible gatherings and crossings.
As a result, employers must adopt specific measures:
- The work space must be reconsidered and reorganized
- Companies must set up special flow management systems (direction of traffic, conditions of use of space and equipment)
- Companies must put at the disposal of their employees hydro-alcoholic gel and use floor tape or marks to help workers maintain the distance.
Several technical recommendations apply regarding entrance of premises, waiting spaces, rest areas, elevators, parking areas, locker room, lunchroom / canteen etc.
Companies that have to involve third parties on the premises must be particularly vigilant on these points.
- Consider industry specific guidance on modifications to the workplace
- Inform and train employees in the use of the workplace
- Consider how to establish the direction of travel in the workplace
What can the prudent employer do to ensure physical distancing in temporal terms?
In order to ensure physical distancing employers may need to consider changes to employees working hours to have staggered starting times, changing shift requirements, splitting workforce into teams, etc.
This may lead to various employment issues – including changes to employment terms re different shifts. Some of these changes will require the employee’s prior consent to be obtained in writing, and employers will also need to consider consultation of the social and economic committee to implement changes to terms and conditions. In this respect, it is usually a requirement in France, that the social and economic committee should be consulted, before the employer can take certain actions. However, given the current situation, the Government has enacted a regulation authorising employers only to consult the social and economic committee only after the implementation of a decision in certain areas (such as working time).
- Consider what changes to employment terms may be necessary
- Consider whether the social and economic committee need to be consulted
What protections should the prudent employer consider implementing, in addition to physical distancing?
Employers need to consider additional cleaning requirements, provision of personal protection equipment, and screens. Moreover wearing a face mask is compulsory in all collective closed spaces such as open spaces, meeting rooms, waiting spaces, rest areas, elevators, locker rooms, lunchrooms / canteen, etc. Face masks will not be compulsory in individual closed offices where only one employee is present. This requirement may be adapted in some circumstances following a thorough risk assessment and consideration of more adapted preventive measures. In addition, face masks can be removed on certain occasions for short periods of time and provided certain conditions are met. These conditions are more or less restrictive depending on whether the virus circulates actively in the said geographical area.
Except for healthcare professionals, the employer shall provide FFP1 masks or alternative masks for non-health use, known as “general public with filtering capacity superior to 90%” masks, developed in the context of the COVID-19 pandemic (these are also known as category 1 face masks). The employer can also provide visors, gloves or glasses for example.
Employees refusing to wear a face mask where such item is required may be subject to disciplinary sanctions.
Employees refusing to wear a face mask where such item is required may be subject to disciplinary sanctions.
How can an employer screen its employees, including temperature testing, COVID-19 testing and questioning?
Screening campaigns organised by companies for their employees are not allowed. Temperature monitoring is not recommended and employees are entitled to refuse it. If an employer, faced with such refusal, does not allow the employee to take up his or her position, it may be required to pay the employee their equivalent remuneration for each lost working day.
The French Government published a detailed protocol to be used for the management of a person suffering from any symptoms of the virus, such as the requirement to isolate the person in a dedicated room and this to ask the support of the dedicated healthcare professional in the establishment. This protocol is regularly updated by the authorities (the latest version of such document was released on 16 February 2021).
For individuals where the COVID-19 case is confirmed, the identification and handling of contacts shall be organised by the authorities in the context of contact-tracing operations.
What are the requirements regarding travel – either to or from the office or business travel?
To date, there are no longer travel restrictions for internal travel in France (except from/to French overseas territories). Potential restrictions on the use of public transportation could be reinstated by local authorities in some areas being classified as high-risk areas (i.e. where the COVID-19 circulates actively).
As far as overseas / international travel is concerned, the following measures have been put in place in late January 2021:
- Any entry onto the French territory (including overseas) from/to a non EU country is prohibited, except for these individuals justifying absolute need to travel (with relevant evidence and self certificate, available here[GE1] );
- These people travelling to France from a EU jurisdiction need to evidence a negative Covid test taken less than 72 hours before travel (except for frontier workers), and need to certify that they do not have any symptoms of Covid, and that they have not been in contact with a confirmed Covid case within 14 days before the entry onto the French territory.
[GE1]A hyperlink is included here. Please make sure to include it in the online version
Potential restrictions required by foreign authorities (such as quarantine measures) should be considered when travels outside France are necessary.
- Consider methods of travel to the office
- Encourage use of virtual meetings to limit business travel
How does the prudent employer decide which employees should return to the workplace?
Only employees whose duties are not compatible with remote working (partly or fully) should be authorized to return to the office. Other employees should work remotely and are only authorized to return to the office one day per week, upon express request and subject to the employer’s agreement.
In any case, employers will need to ensure that they do not adopt discriminatory selection criteria in determining who should return to work.
Special care shall be given to the most vulnerable categories of employees (defined by the French authorities as people aged 65 or older, people with a cardiovascular history or diagnosed with chronic disease as diabetes, ,complex diseases (such as Parkinson or multiple sclerosis) or rare diseases, people with immunodeficiency syndrome, people with severe obesity (BMI>30) and women during the third trimester of pregnancy), and those with family/caring responsibilities.
Employees who have no choice but to use public transport may be granted priority for remote working schemes.
What if an employee refuses to return to the workplace?
If the employer believes (and is comfortable with this belief) that the conditions for a safe return to the job site are met, and that the employee’s duties are not compatible with remote working, such refusal would not be legitimate and the employer would then need to consider whether to take disciplinary action in response to this. However, and generally speaking, the individual situation of each employee would need to be considered, and a discussion may arise on the grounds for such refusal (and possibly on how to reduce the employee’s concerns). Refusal by some employees to return, may mean that those who do return to work are required to carry out additional work and employers will need to be careful that any additional work does not breach working time regulations.
What other considerations should the prudent employer be thinking about at this time?
Along with the obligations set out by the French authorities, the employer should also comply with any further requirement provided for at regional or business sector level.
What are the safety and employment issues for consideration regarding the vaccines?
In France, the Government established a specific strategy regarding the vaccine campaign. This includes targeting the most vulnerable and exposed persons first, and progressively extending the Covid-19 vaccine to the rest of the population. Generally speaking, adults who are not particularly vulnerable will have to wait several months before being authorised to have the COVID-19 vaccine.
Also, to date, the Government has chosen not to require French people to get vaccinated against COVID-19, and therefore, it is ultimately the decision of the individual as to whether to get vaccinated. At this stage, employers cannot mandate that their employees have the COVID-19 vaccine before returning to the workplace.
Whilst implementing a requirement for staff to be vaccinated would clearly be contravening French law, encouragement and recommendation would be an appropriate and balanced step to take.