The outbreak of Novel Coronavirus (COVID-19) has sparked fears of a worldwide pandemic. Following the World Health Organization’s declaration that this is a public health emergency of international concern, the French Government has (at the time of writing) raised the risk to France from “step 1” (mere alert) to “step 2” (curbing the spread), and is expected to raise it to “step 3” (final step - active circulation on the territory) in the coming days. Understandably, this may be creating great concern and unrest for you and amongst your workforce. Below we answer some key questions of employers to clarify legal obligations and support you in protecting your business and people.
What are employers' obligations in respect of COVID-19?
As at time of writing there are no specific mandatory obligations for employers in respect of COVID-19.
However, unless or until legal obligations arise, employers should ensure that they are taking any necessary steps to protect their employees. All employers have a general obligation to take the necessary measures to ensure the safety and protect the physical and mental health of their workers.
As such, employers should carry out a risk assessment and consider any factors that may make employees particularly susceptible to infection. Employers should also consider circulating up-to-date information on good hygiene practices and provide any necessary equipment to facilitate this, such as hand sanitisers. For example, we recommend issuing a reminder on actions employees can take to help stop viruses like coronavirus spreading. Such advice must be provided in French and may include:
- Cover your mouth and nose with a tissue or your sleeve (not your hands) when you cough or sneeze
- Put used tissues in the bin immediately
- Wash your hands with soap and water often – use hand sanitiser gel if soap and water are not available
- Greet each other without shaking hands, avoid kisses to say hello
- Try to avoid close contact with people who are unwell
- Wear a mask when sick (on doctor's prescription)
This advice should include a signature section at the end explaining that the employee fully understands the advice and undertakes to follow it.
We further recommend notifying employees of where they can access more information if they are concerned. In France, information can be found using the following links (please note all information is in French):
- General information and recommendations on coronavirus; and
- Specific recommendations for employers and employees.
We also advise:
- to widely publicise the hotline number specifically set up by the authorities for any questions related to the epidemic (now available 24/7) : 0 800 130 000; and
- to invite anyone who suspects they may have been infected to call the emergency services, by dialling 15 (this is the usual toll-free number for medical emergencies).
Can employers request or require information from an employee about potential or actual exposure to the virus?
The question of whether an employee can be asked to sign a declaration about where they have been, their exposure to the virus, or be required to provide information to an employer in order for the employer to provide confirmation to a customer sits firmly in the crossover between data privacy and employment. French employers are under a duty to provide a safe and secure working environment under articles L. L4121-1 and sq. of the French Employment Code. The collection of such data may be necessary to protect the health, safety and welfare of other employees. French employees are subject to a more general obligation to comply with reasonable instructions or requests issued by their employer. Employers may therefore ask an employee to voluntarily confirm and specify where he/she has spent the past 15 days in order to assess the level of risk to the workforce. Employers may not, however, ask employees to confirm that they aren't infected or request a medical certificate to the same effect.
Any such data must also be processed in line with the applicable privacy requirements. Information about an employee's health (such as whether the individual has been diagnosed with the virus or is suffering from any symptoms) is sensitive personal data and accordingly additional requirements and obligations apply to the processing of such data. Despite the GDPR being EU-wide legislation, the position is complex from a European data privacy perspective. Employers will find that the type and extent of the information they can compliantly process, and the legal basis for doing so, is likely to vary from country to country.
- In France, employers should be able to process such employee information by relying on Article 9(2)(b) GDPR together with the 1978 Data-processing and freedoms Act (Loi informatique et libertés), on the basis of the health and safety duty referred to above.
- French employers would need to show that the collection of employee information is necessary to protect the health, safety and welfare of its employees, and should document its consideration of the risk to its employees and of any alternatives considered.
- Employers would need to have an appropriate policy document in place for such processing and the usual key principles and obligations (such as transparency, data minimisation and security requirements).
- It is advisable to follow the updated guidelines given by the CNIL (French data protection agency) on its website, with respect to the current epidemic (contents in French) : https://www.cnil.fr/fr/coronavirus-covid-19-les-rappels-de-la-cnil-sur-la-collecte-de-donnees-personnelles
- In particular employers should avoid systematic and general collection of health-related data amongst employees.
Employers may also face situations where a customer/client requests or requires travel or health information relating to their employees.
- Where this applies, the employer should as a starting point seek to provide generic reassurance to the client / customer.
- If this does not suffice, employers should consider whether there are grounds for the employer to provide certain information to the third party. Employers could also consider advising employees that they can provide information to third parties, if requested and if they are happy to do so.
- Unless there is a clear legal obligation on the employer to do so, employee consent is likely to be the only applicable legal basis for sharing such information with third parties (unless, for example, the employer is legally obliged to so). To be valid, consent must be freely given.
- The company must not require employees to provide this information to third parties and consider carefully what, if any, further action to take if the employee refuses to do so. There is a risk that where the employer requires employees to attend client sites, any employee consent to the provision of information in order to access those sites would not be freely-given and therefore not valid.
Further to the above, the position regarding European data privacy rules and how they impact information relating to COVID-19 is developing. A number of EU governments, including the French Government, have issued further guidance and more still are considering whether emergency legislation may be required, particularly if the situation escalates. The position will need to be kept under review as the situation evolves and further guidance becomes available.
Finally, we note that a French employee cannot be disciplined either because of a particular state of health, refusing to disclose their health status, disclosing their health status despite the employer's recommendations or refusing to disclose where they have been/visited while outside of work.
What are employers' obligations where employees are absent or infected?
If an employee is infected with COVID-19, the employer must inform the relevant Regional Health Agency (ARS) and call the usual emergency number “15”which will give out advice specific to the circumstances. There is currently no specific requirement for employers to inform staff representatives (such as works councils) if an employee becomes infected. However, an employer may opt to disclose such information. When doing so to anyone other than the authorities, employers must be very careful to balance the privacy of the individual with the public interest in avoiding the spread of the virus – keeping in mind that this kind of information tends to circulate on its own, and that it is best to address the issue to reassure all the stakeholders than to avoid the subject altogether.
In addition, the current sanitary recommendations are to evacuate and, after a 3h delay, undergo a full cleaning and disinfection of the premises.
If an employee is quarantined, they are entitled to up to 20 days of benefits from social security, provided that they request the relevant medical certificate from the ARS. Infected employees are indemnified under regular sick leave (details of which will depend on any applicable collective bargaining agreement and the employee's length of service).
In addition to the priority of health protection, the employer should develop a concept as to whether and how operational processes can be maintained.
Potentially Infected Employees
Where an employee has come into contact with an infected colleague, they should, as far as practicable, be released from work or work from home, with, in any event, instructions to take their temperature twice a day for 14 days, to check for symptoms and, if in doubt, to call the toll-free number “15”, without going to their family doctor or to the emergency room. As a matter of course the confidentiality has to be observed as far as possible.
In general, if there is a reason to believe that an employee poses a risk to the health of other employees, for example because they have been in a risk area, the employer may unilaterally ask them to work from home or, if this is not compatible with their duties, to exempt the worker and deny them access to the premises. However, the employee retains their right to remuneration during this exemption period.
Potentially exposed employees (including those who have travelled to at-risk areas or who don’t have childcare arrangements for a child in quarantine) are also eligible to the 20 days of benefits upon request to the ARS (subject to medical evaluation of their particular case).
It is recommended that employees on an assignment or secondment to an at-risk area (at the time of writing: Mainland China, Hong Kong, Macao, Singapore, South Korea, Iran, Emilie-Romagne, Lombardy and Venetia regions in Italy) should be offered repatriation (particularly in the case of China), and that scheduled non-essential travels to the same regions be cancelled or postponed.
If travel is unavoidable, it is advised to refer to the instructions on the website www.gouvernement.fr/info-coronavirus and to make sure that employees follow the relevant guidelines.
An employee cannot be obliged to travel to one of these regions or be sanctioned for refusing to do so (art. L. 4131-1 of the French Labour Code).
Employers should also invite employees returning from (or living with persons coming back from) "at risk areas" to be especially careful in following the general sanitary guidelines and to take their temperature twice a day for 14 days.
Refusal to work or attend work
Employers should consider their approach to dealing with employees who want to stay at home to avoid being infected. The Employees are under the obligation to perform work. They may not be absent from work on their own initiative due to a fear or abstract risk of an infection.
However, employees are entitled not to come to the premises:
- If they are infected or placed on quarantine, and can support this with a medical certificate from the ARS (or another medical practitioner); or
- If coming to work may actually present a risk to their health and safety e.g. if one of their colleagues is infected - until the premises have been cleaned and disinfected.
In any event, we recommend, if generic reassurance doesn’t suffice and as far as possible, to invite employees who refuse to attend work to work remotely. In some circumstances, a refusal may be treated as disciplinary matter.
What are employers' obligations where offices are partially or fully closed?
In principle, an office closure doesn’t exempt an employer from paying employees their wages. If a business is closed in France the employees are usually entitled to compensation. As such, insofar as possible our initial recommendation is to implement working from home for as many employees as possible. Under current circumstances, the employee’s consent is not absolutely required.
Further, given the current “exceptional circumstances” employers may apply to the “partial activity” scheme, which enables the company to temporarily close all or part of an establishment (or reduce the collective working hours), while (i) maintaining only a fraction of the concerned employees’ salaries (usually 70%), and (ii) obtaining a state-funded allowance to compensate the maintenance of these wages.
Where can employers and employees access local and national advice?
General information and recommendations (in French) are available here:
- General information and recommendations on coronavirus; and
- Specific recommendations for employers and employees
It is strongly recommended to keep up to date with these recommendations, as they are quite detailed, and are updated daily.