The spread of COVID-19 and the resulting uncertainty about its future impact has led companies and their officers (regardless of their sector) to put in place measures to avoid or limit the spread of the virus. These measures are necessary to avoid future liability, even if, as a force majeure, the primary source of the epidemic is obviously not attributable to the companies.
Infected employees or those at risk of infection could seek the criminal and/or civil liability of their employer, or even of its officers. Furthermore, third parties subject to the risk of infection by a company’s employee may also consider taking legal action against a company.
Companies and their officers run a lower risk of criminal or civil liability if they adopt the measures required by the French government and the Ministère du Travail (Ministry of Labour). It is the government’s responsibility to provide for these measures. This is particularly important in circumstances where the authorities have not taken general containment measures.
1. What are the potential criminal offences?
In theory, companies and their officers are subject to a duty of safety. They must therefore take all necessary measures to protect the health of their employees.
If a company “deliberately” violates a duty of safety imposed by any statute or regulation, it will incur a criminal liability when such a violation:
- Subjects employees to an immediate risk of death or injury likely to cause permanent infirmity
- Causes harm
Such violation constitutes a reckless endangerment of others, which is an aggravating factor in determining the punishment for several offences, including unintended offences against life or physical integrity, a series of offences that differ depending on the damage caused and its seriousness.
These offences are punishable by one to three years’ imprisonment and by fines of €1,500 to €45,000.
Companies may face a fine equal to five times the maximum amount of any fine applicable to their officers. Additional penalties may also be imposed, such as a prohibition on practising the professional activity in which the offence was committed.
2. Could an employee seek the liability of a company and/or of its officers under French civil law?
Even in the absence of a criminal offence, a company could be held liable pursuant to article 1240 of the French Civil Code where it is established that the company is at fault and infection takes place either within the company or it is transmitted from the company to a third party. An officer of the company could also be held liable on the same grounds if they commit misconduct outside the scope of their normal corporate duties.
Furthermore, employees could also claim against their employer pursuant to the provisions of the French Social Security Code:
- Occupational disease claims. These could arise, even if COVID-19 is not on the list of occupational diseases provided by the French Social Security Code, if a company has exposed its employees to the risk of infection.
- Compensation for “inexcusable fault.” This could be sought if an employee can prove breach of a company’s duty of safety, which is an “obligation de résultat” (meaning it must achieve a specific outcome under French law). That will be the case if the employer is or should be aware of the danger the employee faces and does not take the necessary measures to preserve their safety. In such a case, an officer may also be held personally liable.
- Mental distress. Employees could also seek a remedy for the harm caused by anxiety due to the fear of infection within the company.
3. What measures should employers implement to avoid liability?
In theory, the employer’s duty of safety is an obligation de résultat (meaning it must achieve the outcome required). However, if the hazard faced by the employee was mainly outside its control, the company is only subject to an “obligation de moyens” (a duty to take all necessary measures without being held liable if the aim is not reached). This will be the case with an epidemic or pandemic, since its origin is necessarily beyond a company’s control, unless the company disregards the measures that it is required to take to prevent internal or external spread of the infection.
A company and its officers will not be held liable under French law if the government’s requirements are met. These requirements must be regularly re-assessed and altered to take account of updated government requirements.
It is unlikely that that a company or its officers will be held liable under the French Social Security Code. This is because COVID-19 is an epidemic or pandemic and it is improbable that the health impact caused by it could be categorised as occupational disease.
Practically, the preventive measures to be implemented include:
Provision of adequate personal hygiene means (e.g. soap, antibacterial gel)
Placement of workers returning from countries at risk or with symptomatic signs of COVID-19 into the care of an occupational health professional
Provision of a dedicated room for use by employees who present symptoms before they are able to make contact and seek advice from health authorities
Development of safety and protection guidelines specific to the risk of an epidemic or pandemic
Provision of comprehensive, transparent and regular information to employees, and an appropriate communication and action should an employee be identified as infected
The uncertainties surrounding this new virus, and the development of the epidemic or pandemic, make it unlikely that prevent civil liability shall arise. However, the uncertainty does not negate the duty of caution and vigilance.
In addition, a company may have grounds to exclude a company’s contractual liability towards its customers if it was not able to perform a contract in whole or in part due to force majeure caused by the virus subject to the contractual provisions.