By Matthieu Babin, Firm: Capstan Avocats
The French scheme under which employees who are considered vulnerable or who cohabit with vulnerable people are placed on a ‘partial activity’ regime where they do not need to attend work is likely to end soon. How should employers prepare and fulfil their health and safety obligations towards these employees?
Which employees benefit from an ‘isolation certificate?’
Since 1 May 2020, the following employees have been put on the ‘partial activity’ regime:
- Those considered ‘vulnerable persons presenting a risk of developing a serious form of infection with the SARS-CoV-2 virus’, according to criteria defined by regulation (decree no. 2020-521 of 5 May 2020); and
- those who share a home with a vulnerable person.
For this purpose, the employee must present his or her employer with an ‘isolation certificate’ drawn up by a doctor certifying (in compliance with medical confidentiality) that he or she falls within the official conditions described above.
This exceptional measure is intended to end on a date which will shortly by established by decree.
What to do if an employee asks to resume work?
Even before this deadline, can an employee ask to leave the partial activity scheme in order to resume his or her activity?
There is no text requiring that an employee who intends to resume work be issued with a document certifying the ‘end’ of isolation, which, moreover, it is unlikely a doctor would issue.
In addition, a medical examination for resuming work should not be required, even after 29 days, since this specific coronavirus partial activity scenario does not constitute a stoppage of work in the strict sense of the term (Labour Code, art. R. 4624-31).
More generally, there is no longer a requirement for a notice of fitness to work, except in special cases (Labour Code R 4624-24 et seq.).
A certificate of isolation, drawn up by a doctor in accordance with government recommendations and without a specific duration or term, attests to the vulnerability of an employee or one of his or her relatives. The employer does not need to know more: the rest is medically confidential.
It seems logical that the employer should take precautions to ensure that the employee’s return to work takes place safely, in compliance with its obligation to ensure employees’ security and without exceeding the limits of confidentiality.
Asking the employee for a written ‘release’ does not seem appropriate: an employee cannot release the employer from his safety obligation (Labour Code, art. L. 4122-1 para. 2) except in the event that the employee decides, spontaneously, to explain that he or she is no longer sharing a home with a vulnerable person...
Making sure the employee’s return to work is safe
The only way to ensure a safe return to work therefore seems to be for the employer to ask the occupational physician to see the employee for a visit on request (Labour Code art. R. 4624-34), ensuring they explain the reasons for this.
If the occupational physician agrees to conduct the visit, it is irrelevant whether he or she provides a medical opinion: merely issuing an ‘attestation de suivi’ (follow up certificate, Order of 16 October 2017) may be sufficient. This indicates that the doctor has not considered it necessary to make recommendations relating to the employee (Labour Code, art. L. 4624-3), though of course, the doctor can make such recommendations.
If the doctor refuses to carry out the visit, the employer should inform the employee of this refusal, so that he or she is aware of it. The employee may personally request a doctor’s visit and, if necessary, confirm his or her wish to resume work.
The employer is entitled to respect its obligations under the employee’s contract and cannot be accused of having disregarded its safety obligations (because it has asked for the occupational physician to see the employee).
Above all, the employer should not know whether the isolation was related to the employee's own state of health or to the employee’s temporary proximity to one or more vulnerable people.