Anticipating Business Recovery in France

Developing a business recovery strategy

Prompted by the French government's support measures, companies are favoring a partial resumption of business activities.  Employers will have to consider, however, the extent to which business can resume—i.e., partial or complete reopening of operations. For example, employers will need to decide whether to maintain partial activity after quarantine or change employees’ hours and schedules (vary or reduce hours, resort to part-time work, etc.).

The main challenge for employers is to avoid future terminations based on economic reasons, which would inevitably have a detrimental impact on morale, and litigation. The crisis exit strategy, if it involves a new request for partial activity, will necessarily have to integrate the company’s existing employment obligations (obligations to preserve employment, carry out training initiatives, take steps to improve the economic situation, etc.).

Analyzing risks and implementing preventive measures

In view of their safety obligations, employers must make every effort and take all useful measures to handle risks (especially psychosocial risks) related to business recovery either in the workplace or via telework in the context of the COVID-19 crisis.

In particular, employers will have to rely on the government's recommendations throughout this crisis, but that is far from sufficient. Disputes that have arisen to date on this topic, and are likely to multiply, should encourage companies to avoid an unstructured assessment of risks and instead conduct a thorough and organized evaluation, which should be carried out per work unit, along with employees and staff representatives as part of a “multi-disciplinary” approach.

Focus on temperature checks

The government-published national protocol regarding the end of company quarantines advises against (but does not prohibit) checking the temperature of employees at the entrance of the workplace. It recommends self-monitoring since COVID-19 infection may be asymptomatic and fever is not a systematic symptom.

The government advises against it but does not prohibit it. Thus, as part of a set of precautionary measures, a temperature check system may be put in place at the entrance to the premises, although it is not compulsory. Employers should announce the implementation of the temperature check process by means of a memorandum appended to the company’s internal policies/procedures. In view of the urgency of the situation, the process may, in accordance with application of Article L. 1321-5 of the French Labor Code, come into force immediately.

This memorandum must be communicated to the Labor Inspectorate, to the members of the Social and Economic Committee and to all employees (by posting it on the company's Intranet).

In accordance with the government's latest recommendations, an employer that decides to deny access to the premises to an employee who has refused to undergo a temperature check “may be required to pay the employee the wage corresponding to the lost workday.”

The issue of the impact on remuneration, however, is a sensitive one, and the lack of the government’s clarification, particularly regarding the consequences of a temperature exceeding the set limit, is a source of legal uncertainty. A less-restrictive alternative could be the provision of a forehead thermometer with a disinfection kit that employees could use as they wish.

Maintaining social dialogue with employee representatives and involving occupational medicine in business recovery

It is essential to involve members of the Social and Economic Committee, trade union representatives, and occupational health services in the process of business recovery, particularly with regard to risk prevention.

Indeed, state administration explains that internal company stakeholders (staff representatives and occupational physicians) contribute to the prevention strategy and therefore to the updating of the occupational risk assessment document (DUER), but also to the implementation of prevention measures (Circular No. 6, Labor Relations Department (Direction des Relations du Travail) of 18 April 2002).

Judicial courts are particularly vigilant in this respect.

Logistique case (interim order of 14 April 2020 issued by the Nanterre Court of Justice and confirmed by the Versailles Court of Appeal on 24 April 2020).

In addition to the measures and procedures that have effectively been implemented, trial judges require the employer to disclose the content of the discussions and the documents presented at the Social and Economic Committee's meetings regarding preventive measures.

It is therefore crucial for companies to formalize discussions with staff representatives and also with the occupational health service in order to demonstrate that preventive measures have been adopted in consultation with these stakeholders.

The Social and Economic Committee has the right to consult regarding the company's social policy, working and employment conditions, training initiatives as well as any major changes in health and safety conditions.

Adherence to preventive measures by staff representatives will make it easier for the working community to comply with them and thus limit the risks of the measures being called into question (through work stoppage, right of withdrawal, court action). Given the context, meetings with the elected members of the Social and Economic Committee may be held via videoconference, conference call or instant messaging.

Reducing time frames for convening and informing/consulting the Social and Economic Committee on decisions taken by the employer to deal with COVID-19.

French Labor Code reference

Purpose of the time frame

Time frame

First paragraph of section I and first sentence of section II of Article R. 2312-6

Consultation period in the absence of an expert's intervention

8 days

Second paragraph of Section I and first sentence of Section II of Article R. 2312-6

Consultation period in case of expert intervention

12 days for the central committee

11 days for other committees

Third paragraph of Section I and first sentence of Section II of Article R. 2312-6

Consultation period in the event one or more experts intervene when consultation takes place with the central committee and with one or more works committees

12 days

Second sentence of Section II of Article R. 2312-6

Minimum period between the delivery of each works committee's opinion to the central committee and the date on which the central committee is deemed to have been consulted and to have delivered a negative opinion

1 day

With regard to the expert assessments to be conducted as part of the decisions taken to deal with COVID-19:

French Labor Code reference

Purpose of the time frame

Time frame

First sentence of Article R. 2315-45

Time frame available to the expert, as from their appointment, to ask the employer for any additional information deemed necessary to carry out their mission

24 hours

Second sentence of Article R. 2315-45

Time limit set for the employer to respond to this request

24 hours

Article R. 2315-46

Time limit available to the expert to notify the employer of the estimated cost, scope and duration of the expertise

48 hours after appointment of the expert or, if a request has been submitted to the employer, 24 hours after the employer's reply

Article R. 2315-49

Time limit available to the employer to refer each of the cases of appeal provided for in Article L. 2315-86 to the judge

48 hours

First paragraph of Article R. 2315-47

Minimum period between the expert’s report submission and the expiry of the time frames provided for consultation of the Committee mentioned in the second and third paragraphs of Article R. 2312-6

24 hours

The reduced consultation periods apply to those starting from the date of publication of the decree issued for the implementation of Article 9 of Order 2020-460 of 22 April 2020 (i.e., 3 May 2020).

However, where the time limits that began to run before that date have not yet expired, the employer shall have the option of interrupting the procedure in progress and initiating, as from that same date, a new consultation procedure in accordance with the rules laid down in the aforementioned Order.

The reduction of consultation periods shall not apply to information and consultation procedures carried out under any of the following procedures:

  • the dismissal of 10 or more employees within the same 30-day period;
  • a collective performance agreement;
  • the recurring information and consultation procedures provided for in Article L. 2312-17 of the French Labor Code.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.