Apr
30
France - French labour law : Sick leave for childcare (arrêt de travail garde d’enfants) : how does it work?

The work stoppage for childcare (arrêt de travail pour garde d'enfants) allows an employee who is forced to keep his children because of the closure of educational establishments to benefit from a salary maintenance scheme up to 90% of his current remuneration.

From May 1st 2020, employees on work stoppage for these reasons will be placed in partial activity and will receive compensation up to 70% of gross salary, or approximately 84% of net salary. These amounts will be raised to 100% of the salary for employees paid at the minimum wage. This indemnity will be paid to the employee on the normal due date of pay by the company, who will be reimbursed in full by the State under the same conditions as the rest of the partial activity.

This measure makes it possible to avoid a reduction in the compensation of the persons concerned: without this measure, the level of compensation for employees would have decreased to reach 66% of the salary after 30 days of stoppage for employees with less seniority at 5, for example.

I) Compensation of employees by issuing a work stoppage (arrêt de travail) in connection with the epidemic (until April 30, 2020)

1) What are the conditions to benefit from a Covid-19 work stoppage?

1.1) Conditions relating to children

The Coronavirus work stoppage to keep children at home concerns parents of children:

• Aged under 16 on the day of the start of the sick leave. [1]

• With a disability of less than 18 years old taken care of in a specialized establishment. [2] [3]

The work stoppage must be the only possible solution to face the situation of forced custody of the child.

1.2) Conditions relating to parents

• The parent must be affiliated with Améli.fr. Can benefit from the stop of work for childcare:

o Employees of the general scheme;

o Self-employed workers;

o Artist-authors;
o Contract agents in the public service;

o Agricultural workers, sailors;

o Clerks and notary employees;

o Training organizations which can declare their trainees in vocational training there. [4]

Civil servants, as well as other special schemes, are excluded from this system.

• Only one parent at a time can benefit from the judgment. [1]

It is possible to split the judgment or share it between the parents over the period of closure of the establishment. [3]

2) What is the procedure for obtaining a work stoppage for childcare (arrêt de travail pour garde d’enfants) ?

The employee must give his employer an attestation form indicating the surname, first name of the child, his age and the establishment attended.

For a certificate model follow the following link:

 https://travail-emploi.gouv.fr/IMG/pdf/19032020-attestation-de-garde.pdf

The employer must declare this work stoppage via the site: https://declare.ameli.fr/ with the delivery of the elements necessary for the payment of the daily allowance according to the common law procedure applicable to sick leave. [4]

The declaration for childcare made by the employer via declare.ameli.fr replaces the medical prescription.

It is therefore not necessary for an employee to consult his general practitioner to benefit from this stop.

3) Terms of compensation for the employee during his stoppage

The employee on sick leave benefits from the maintenance of his remuneration up to 90% * of his salary thanks to the payment:

- Daily Social Security allowances;

- Additional employer compensation *.

Certain collective agreements provide for full salary maintenance, which brings the additional remuneration to 50% of the basic salary.
 

Please note: an employee cannot benefit cumulatively from the partial unemployment and work stoppage mechanism for childcare.

3.1) Payment of Daily Social Security Allowances (IJSS)

3.1.1) Alleviation of eligibility conditions due to Covid-19

Given the exceptional circumstances related to Covid-19:

- The waiting period is deleted; [1]

- No previous working hours or contribution conditions are required [1].

As a reminder, apart from the Covid-19 epidemic, to be compensated during the first 6 months of a stoppage, the employee had to justify, on the day of the work interruption, the following conditions:

• Have worked at least 150 hours during the 3 calendar months or the 90 days preceding the stop,

OR

• Have contributed, during the 6 calendar months preceding the termination, on the basis of remuneration at least equal to 1015 times the amount of the hourly minimum wage fixed at the start of this period. [5]

The daily allowances were paid to him after a waiting period of 3 days, the employee received an allowance only during the 4th day. [6]

For example, in the event of a cessation from March 1, daily allowances are paid from March 4th.

These two conditions being deleted, the employee can benefit from benefits from the first day without having to prove a minimum period of contribution.

3.1.2) Reminder – Amount of payment of IJSS and duration of compensation

The daily social security allowance is 50% of the basic daily salary.

This daily salary is equal to the total of the last 3 months of gross salary.

The salary taken into account is capped at 1.8 times the monthly minimum wage, i.e. € 2,770.95 per month for 2020

The daily allowances are paid every 14 days by the CPAM which sends a statement which the employee can download.

The decree specifies that the employee on work stoppage for childcare may benefit from daily allowances for the entire duration of the closure of the establishment welcoming this child. [1]

3.2) Additional compensation paid by the employer

3.2.1) Alleviation of the eligibility conditions linked to Covid-19

Except in an exceptional pandemic situation, the employee must fulfill the following conditions to receive additional compensation:

1. Justify at least one year of seniority in the company;

2. Have sent the medical certificate to the employer within 48 hours;

3. Benefit from the daily allowances paid by Social Security;

4. Be treated in France or in one of the member states of the European Economic Area (EEA);

5. Not be a home worker or seasonal, intermittent or temporary employee. [7]

Given the exceptional circumstances linked to Covid-19, these conditions have been adapted and only the condition for payment of daily allowances is maintained. [8]

The additional remuneration must now be paid:

• Without seniority condition;

• Without obligation to transmit the medical certificate within 48 hours;

• Without obligation to be treated in France or in one of the member states of the EEA;

• Without limitation of the employees covered, can therefore benefit from the compensation:

- Employees working at home;

- Seasonal employees;

- Intermittent employees;

- Temporary employees.

3.2.2) Amount and duration of the additional compensation paid by the employer

The employee on sick leave receives additional remuneration paid by the employer, which is added to the IJSS.

This is a legal and sometimes conventional obligation, but to benefit from it the employee must fulfill certain conditions.

Unless more favorable conventional provisions, a waiting period of 7 days is provided for each work stoppage. [9]

However, this waiting period has been eliminated and the employee may receive additional compensation from the 1st day of the work stoppage for childcare. [10]

According to the labor code, the amount paid by the employer depends on the duration of the work stoppage:

- During the first 30 days: the employee receives 90% of the gross remuneration that the employee would have received if he had continued to work.

- From the 31st to the 60th day: the employee receives 2/3 of this remuneration, ie 66.66% of the remuneration. [11]

The amount paid by the employer is calculated as a deduction from the daily social security benefits paid.

The longer the employee has worked in the company, the longer their compensation will be. [12]

Compensation table during Covid-19 period:

Seniority in the company Maximum duration of compensation payments

0 to 5 years 60 days (30 days at 90% and 30 days at 66.66%)

6-10 years 80 days (40 days 90% and 40 days 66.66%)

11 to 15 years 100 days (50 days at 90% and 50 days at 66.66%)

16 to 20 years 120 days (60 days at 90% and 60 days at 66.66%)

21 to 25 years 140 days (70 days at 90% and 70 days at 66.66%)

These compensation procedures apply in the absence of more favorable contractual provisions.

EXAMPLE:

An employee is placed on sick leave in order to babysit her children, she has 10 months of seniority and receives 2,500 euros gross per month. How much will she receive?

Excluding coronavirus, the employee who does not benefit from one year of seniority could not have claimed the payment of a supplement by the employer.

However, this rule being set aside, the employee may receive:

- Daily social security allowances;

- The additional salary paid by his employer.

The amount of his remuneration will vary according to the duration of the compensation:

- During the first 30 days: she will receive 2,250 euros, or 1,274 from IJSS and 975 euros from her employer.

- From the 31st to the 60th day: she will receive 1,667.50 euros, or 1,274 from IJSS and 393 euros from her employer.

- From the 60th day: she will no longer receive from her employer and only 1,250 from IJSS.

II) From May 1st, 2020: compensation of employees by the implementation of the partial activity system (activité partielle)

Law n ° 2020-473 of April 25th, 2020 of amending finances for 2020 was published in the official journal on April 26th, 2020 and provides for the transition to the partial activity system for employees compensated in particular for a work stoppage for child care. [13] Explanations in detail.

1) Employees eligible for change to the compensation scheme

Confirming the announcements of the Ministry of Labor, Article 20 of Law No. 2020-473 specifies that employees in private law who are unable to continue working for one of the employees are placed in a position of partial activity. following reasons:

- The employee is a vulnerable person at risk of developing a serious form of infection with the SARS-CoV-2 virus;

- The employee shares the same domicile as a vulnerable person;

- The employee is the parent of a child under the age of sixteen or of a person with a disability who is the subject of an isolation, eviction or home support measure.

Consequently, the self-employed workers, civil servants and contract agents under public law will continue to benefit from the work stoppage system (see I).

2) What device implemented? What steps should the employee take?

As of May 1st, the law specifies that employees in the aforementioned situations will receive the partial activity allowance, even if they do not meet the criteria provided for in article L.5122-1 of the Labor Code.

 

As a reminder, this article specifies that “are placed in a position of partial activity, after express or implied authorization from the administrative authority, if they suffer an attributable loss of remuneration:

-or the temporary closure of their establishment or part of establishment;

- or to the reduction of the working hours practiced in the establishment or part of establishment below the legal working time. "

The law n° 2020-473 of April 25, 2020 by excluding the conditions of article L.5122-1 of the Labor code, would it also dismiss the authorization of the administrative authority?

The ministry of work (ministre du Travail), specified in its press release that this compensation for the partial activity would be done "under the same conditions as for the companies which undergo a fall of activity. "

Under these conditions, the transition from the compensation scheme for work stoppages to the partial activity scheme should take place automatically, without any particular action on the part of the employee or the employer.

These elements should nevertheless be specified by decree in the coming days.

3) Date of triggering of the device and duration

The law is clear, it will apply from May 1, 2020 "regardless of the date of the start of the work stoppage."

The duration is however different according to the categories of employees concerned:

- For vulnerable employees and employees living with a vulnerable person: the duration of compensation under the partial activity scheme applies until a date fixed by decree and no later than December 31, 2020.

- For employees who are parents of a child under the age of 16 or of a person with a disability: the partial activity system will apply for the entire duration of the isolation, eviction or maintenance measure at home concerning their child.

The law provides that the modalities of application of the article will be defined by regulatory means, the decrees will also have to specify the modalities of compensation of employees receiving the minimum wage in accordance with the announcements of the Ministry of Labor.

 

[1] Article 1 of decree n ° 2020-73 of January 31, 2020 adopting suitable conditions for the benefit of cash benefits for people exposed to the coronavirus modified by decree n ° 2020-227 of March 9, 2020 - art 1 .

[2] Article L3141-8 Labor Code

[3] Améli.fr https://www.ameli.fr/assure/actualites/covid-19-des-arrets-de-travail-simplifies-pour-les-salaries-contraints-de-garder-leurs-enfants

[4] https://declare.ameli.fr/employeur/conditions

[5] Article R313-3 of the Social Security Code

[6] Article R323-1 of the Social Security Code

[7] Article L1226-1 of the Labor Code

[8] Article 1 1 ° ordinance n ° 2020-322 of March 25, 2020 temporarily adapting the terms and conditions of allocation of the additional compensation provided for in article L. 1226-1 of the labor code

[9] Article D1226-3 of the Labor Code

[10] Article 1 of Decree No. 2020-193 of March 4, 2020 relating to the waiting period applicable to the additional allowance to the daily allowance for persons exposed to the coronavirus

[11] Article D1226-1 of the Labor Code

[12] Article D1226-2 of the Labor Code

[13] https://www.legifrance.gouv.fr/eli/loi/2020/4/25/CPAX2009624L/jo/texte

Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)

CHHUM AVOCATS (Paris, Nantes, Lille)

e-mail: chhum@chhum-avocats.com

www.chhum-avocats.fr

https://www.instagram.com/fredericchhum/?hl=fr

.Paris: 4 rue Bayard 75008 Paris tel: 0142560300

.Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644

.Lille: 25, rue Gounod 59000 Lille tel: 0320135083

 

 

 

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