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.
Updated: April 16, 2020
The spread of the novel coronavirus (COVID-19) across the globe remains a significant concern in the workplace. Employers are confronting difficult questions regarding how to handle mandatory lockdowns, safety and health rules, travel restrictions, compensation, and other employment issues. The following Frequently Asked Questions (FAQs) are designed to address some of the more common questions that employers with operations in France currently face. Employers are also encouraged to consult relevant FAQs put forth by the World Health Organization (WHO) and France’s health authorities.
1. Should an employer restrict travel to all “affected areas” where there have been confirmed cases of COVID-19 infections, as reported by the World Health Organization (WHO)?
The government advises to avoid travel to any of the “affected areas.” Therefore, an employer may restrict or postpone business travel. The employer can also ask employees to disclose where they have traveled for personal reasons, although the employee may choose not to answer. The employer cannot discipline employees who refuse to answer.
In the context of the implementation of the state of health emergency, the Ministry of European and Foreign Affairs now recommends postponing non-essential travel abroad, particularly outside the European Union, to limit the spread of the virus. It is prescribed to limit travel to essential travel only.
2. What should an employer do if an employee shares that they plan to travel to an affected area?
An employer may recommend that the employee cancel or postpone their personal travel to an affected area, but it cannot restrict such personal travel. In this case, the employer can require employees who have traveled to an affected area, whether for personal or business reasons, to work from home or stay away from the workplace for a certain period. Whatever measures are implemented should be applied to the entire workforce to avoid discrimination claims.
Given the COVID-19 epidemic, employers are required to implement teleworking as an adjustment to ensure continuity of the company’s business and guarantee employees’ protection. An employer can require employees to work from home, even without their consent (except that consent is required for protected employees, such as elected members of a works council).
If telework is not an option, the employer can modify the dates of employees’ paid leaves that already have been scheduled, to cover the quarantine period. If the employee does not have paid leave scheduled yet, the employer cannot force them to use the paid leaves, unless the collective bargaining agreement, the employment contract or the company rules specifically authorize the employer to do so. If the employee refuses to use their paid leaves, or does not have enough paid leaves left, the employer can exempt them from work activities, but will have to pay them a salary.
Moreover, the Ordinances of March 25, 2020 amended the rules relating to leave. Until December 31, 2020, the employer may require an employee to take paid leave or change the dates of paid leave already scheduled, within six days of the leave. Until December 31, 2020, the employer may also impose or modify the rest days earned by the employee as a result of the working organization.
3. How should an employer handle employees who have family members who have traveled to affected areas?
The employer is not required to ask the employee to stay at home. Unless employees have become infected, they are allowed to work at the company’s premises.
The employer is allowed to require the employee to telework, as discussed above. (See answer to Question #2).
4. Can we prevent employees from traveling to affected areas for personal reasons?
Please see answers to Questions #1 and #2.
5. What discrimination issues should employers address/be aware of?
There are no specific discrimination issues regarding the coronavirus in France. The usual rules apply: employers must apply the same measures to all employees placed in the same situation (e.g., all employees who return from affected areas). Employers must not treat employees differently based on their nationality.
6. What are the employer’s obligations to prevent harassment of those suspected of being infected?
While there are no specific statutory prohibitions against harassment based on coronavirus infection, the Labor Code promotes equality among employees and prohibits employment discrimination based on a protected category, including health status, physical condition and ethnicity.
7. Can employers take the temperature of employees who are coming to work?
Temperature control may be implemented through a set of internal rules designed to ensure the health and security of employees.
To that end, the employer must :
- Inform the employees in advance about this system (memo, posting, internet distribution), about the temperature standard allowed and the consequences of exceeding this standard.
- Inform about the consequences of a refusal.
- Take the temperature under conditions that preserve the employee’s dignity.
Provided that these conditions are met, if the employees refuse to have their temperature taken, the employer is entitled to refuse them access to the company.
8. Are there any rules on what employers are allowed to do concerning subjecting employees to medical examinations or health-related tests that would apply to an emergency situation involving a communicable illness such as COVID-19?
Please see the answer to Question #7.
SAFETY & HEALTH RULES
9. Are non-healthcare employees required to wear respirators or other personal protective equipment?
Under government guidelines, only employees infected with the virus are required to wear a mask, and they should not come to work. Employers should provide other protective equipment, such as soap or hydro-alcoholic solution, to comply with their general obligation to protect employees’ health and safety.
Only if a job analysis has concluded that certain tasks do not allow employees to work at safe distances or with proper barriers is the wearing of an alternative mask for non-medical use (so-called "barrier mask") recommended.
10. Can an employer with a public-facing business prevent employees from wearing a surgical mask or respirator?
Except for the healthcare industry, employees are not required to wear masks. Although employers technically can ask non-healthcare employees to remove their mask, we do not recommend it. For client-facing businesses, employers should follow the Government’s health guidelines, which include:
- When contact is brief, employees should follow preventive measures (such as washing hands very regularly, coughing or sneezing into one's elbow or into a handkerchief, greeting without shaking hands, avoiding hugs, using disposable handkerchiefs and throwing them away).
- When the contacts are prolonged and close, in addition to following the above measures, employees should keep a courtesy zone of one meter, clean the surfaces with a suitable product, and wash their hands.
11. What if an employee requests to wear some type of mask as an accommodation?
Sees answer to Questions #9 and #10.
12. For employers that have events for large gatherings scheduled, should they cancel them?
Since March 17, 2020, contacts and gatherings are reduced to a strict minimum throughout the country until May 11, 2020 (subject to extension).
13. Has your country’s government issued travel advisories? (If so, please summarize the guidance and provide a link to the government’s website (if applicable)).
Due to the implementation of the state of health emergency in France, no travel abroad should take place at this time.
14. An employee who recently traveled to an affected area (in another country) is having difficulty re-entering your country. Can an employer help the employee get back into the country?
Given the current pandemic, employees (regardless of their nationality) will need to follow the immigration process that the government has instituted and employers cannot intervene on their behalf.
UNEMPLOYMENT & OCCUPATIONAL RISK LIABILITY
15. Do employer-instituted quarantines or temporary shutdowns or mass layoffs entitle workers to unemployment benefits or severance?
Leave benefits available to employees impacted by the coronavirus:
- Employees with a COVID-19 infection that has been confirmed by a doctor can receive the conventional sick leave benefits, plus a social security allowance.
- Employees in quarantine can receive an allowance of 20 days’ pay from the French social security system and additional compensation paid by the employer. The latter is similar to what applies for regular sick leaves, but without a waiting period.
- Since March 18, 2020, the Social security authorities have allowed individuals who are pregnant or undergoing treatment for long-term illnesses listed by the High Council of Public Health (so-called “Haut Conseil à la Santé Publique”) to apply online for 21 days' sick leave without going through their employer or their doctor.
- If teleworking is not possible, employees who are parents of children under the age of 16 impacted by a school closure can benefit from a “work leave.” As this work leave benefits only one parent, the employee must provide a statement to the employer, certifying that they are the only parent who can look after the child at home. From the business standpoint, the employer must declare the “work leave” on the health care insurance fund’s website, as of the date the leave commences.
- An employee with a child infected with or exposed to the coronavirus can benefit from a specific leave related to the coronavirus. The employee would be covered by the daily social security allowance without a waiting period, plus other conventional or legal compensation also without a waiting period.
Additionally, employees who suffer a loss of wages due to a temporary closure or reduction of hours can receive an allowance equal to at least 70% of the employee's gross remuneration (absent more favorable CBA provisions). The employer, in turn, can receive reimbursement from the State equal to 70% of the employee's previous gross remuneration (i.e. approximately 84% of the net salary), up to a limit of 4.5 SMIC, with a minimum of €8.03 per hour, regardless of the size of the company's workforce.
To implement a temporary closure and reduce employees’ working hours, employers must meet very specific criteria and follow particularized rules, including inform and consult with the company’s works council (social and economic committee).
16. What are an employer’s workers’ compensation obligations if an employee traveled to an affected area for work and contracted COVID-19?
See answer to Question #15.
WORKS COUNCIL/INDUSTRIAL UNIONS
17. In the event of a government-declared quarantine or state of emergency, does your country’s law override contractual provisions and allow for actions that might contradict a collective bargaining agreement (CBA)?
In the context of state of emergency, contractual or CBA provisions must be complied with.
18. According to your government’s health department, what are the steps that employees should follow to notify the authorities that they suspect or are confirmed to have a COVID-19 infection?
The employee should call “15” or “112” in France.
19. Can an employer require employees to self-report having a COVID-19 infection?
Any person with a confirmed case of COVID-19 infection must notify the governmental authorities. (See answer to Question #18). Employees generally are under a duty to protect the health and safety of the workplace and, as such, are required to inform the employer of any contamination, especially if the employer affirmatively seeks this information. Refusal to answer or provide this information may be considered a violation of their obligation.
20. If one of our employees is quarantined, what information can we share with our employees? Who can we share it with?
The employer must inform the works council (social and economic committee) and the other employees that an employee is in quarantine.
21. What privacy concerns do we need to be aware of when we are asking for our employees’ health information in order to evaluate whether they need to be quarantined?
See answer to Question #8.
As this is a fluid and rapidly changing situation, please keep in mind that different or additional facts may warrant re-assessment of policies and practices so they can serve the best interest of employees, employers and the community at large. Accordingly, employers should consult with their employment counsel to keep updated on any new legislation or related legal development.