On February 28, 2020, the Ministry of Labor published a question and answer for companies and employees regarding the context of the Covid-19.
Several updates have since taken place in order to take into account the development of the health situation and government measures.
This article deals with:
- Measures that the employer must implement to protect employees (1);
- The specific measures to be implemented for employees working in contact with the public (2);
- Updating the DUER with regard to COVID 19 (3);
- The conduct to be followed by the employer if an employee of the company is infected with the COVID 19 virus (4);
- The right of employees to withdraw (5).
1) What measures to take to protect the health of employees?
The employer is bound by an obligation of security of result towards his employees, he must therefore take the necessary measures to "ensure security and protect the physical and mental health of workers" (article L.4121-1 of the Labor Code ).
In view of the current health context and this obligation, several measures are recommended by the Ministry of Labor.
As a priority, the employer must place employees in telework as soon as their job allows and avoid professional travel.
If telework is not possible, the employer must then set up workstations to limit contact and avoid any risk of contamination.
This notably involves:
- Respect for distance rules and barrier gestures;
- Very regular hand washing;
- Limitation to the strictly necessary meetings;
- The limitation of groupings of employees in reduced spaces;
- Avoid places where fragile people are;
- The postponement / cancellation of any unnecessary travel;
- Work reorganization (the Ministry of Labor recommending, where possible, the rotation of teams).
Regarding the wearing of masks, the Ministry of Labor specifies that the employer can use FFP2 masks that have expired less than 24 months ago, provided that they have been stored in accordance with the manufacturer's recommendations and after being subject to 4 successive tests whose list is established on the website of the Ministry of Labor (https://travail-emploi.gouv.fr/actualites/l-actualite-du-ministere/article/coronavirus-questions-reponses-pour-les-entreprises-et-les-salaries)
Failing to take adequate measures to preserve the health of its employees, the employer engages its responsibility due to its obligation of security of result.
2) What measures for employees working in contact with the public?
The Ministry of Labor distinguishes two categories of contact with the public: brief contacts and prolonged and close contacts.
For brief contacts, only barrier measures are recommended, i.e. limit contact and wash your hands very regularly.
For prolonged and close contacts, the Ministry of Labor recommends, in addition to washing your hands very regularly, to maintain a distance of one meter between employees and customers and to clean the surfaces with a detergent.
3) Update of the DUER with regard to the Covid-19
Article R.4121-2 of the Labor Code provides for the updating of the DUER when a major planning decision modifies the health and safety conditions of employees.
In this case, due to the Covid-19 pandemic, companies must update the DUER in order to prevent possible contamination and protect their employees.
The objectives of this update of the DUER are:
- Identify the usual work situations that could lead to the transmission of Covid-19, in particular with regard to the conditions of transmission of the virus and "close contact" between employees;
- Anticipate "the risks linked to the epidemic" and in particular anticipate the risks linked to the evolution of the epidemic;
- Identify the risks associated with the new work organization implemented following the epidemic (telework, layout of premises, new work organization, etc.).
Due to the updating of the DUER, measures will have to be taken by companies, whether it be prevention, information, training or protection measures in the event of a risk.
4) What reaction does the employer have when employees show symptoms / are infected?
When an employee presents symptoms (fever, respiratory signs), the employer must send him home or, in case of serious symptoms, contact 15.
If an employee is found to be contaminated with Covid-19, and because of his obligation of safety of result, the employer is recommended to clean the floors and surfaces (the virus can probably survive 3 hours).
The conditions for cleaning company premises are also recommended by the Ministry of Labor (equipment for people in charge of cleaning, protective gear and disposable equipment, washing in 3 stages with a product detergent, potable water and bleach).
The Ministry of Labor specifies, however, that the closure of the company is not necessary in the presence of proven cases of Covid-19.
The employer must, however, comply with health recommendations. If necessary, they can approach occupational medicine in order to be supported in the implementation of preventive measures.
5) Can the employee invoke his right of withdrawal with regard to the Covid-19?
Provided for in article L.4131-1 of the Labor Code, the right of withdrawal allows an employee to withdraw from his workstation if there are reasonable grounds for believing that a work situation "presents a serious and imminent for his life or his health ”.
The Ministry of Labor recalls that the right of withdrawal can only be exercised in the face of a particular work situation and not in the face of a general context (in particular a pandemic).
Also, the Ministry of Labor considers that if the employer implements all the health recommendations, the right of withdrawal could not be applied.
However, the exercise of the right of withdrawal by employees will certainly be assessed on a case-by-case basis by the courts.
In the event of the improper exercise of the right of withdrawal, the employee may suffer withholding of wages and, if necessary, be dismissed for real and serious reasons.
For more information on the right of withdrawal during Covid-19 period: our article: COVID-19: update on the right of employees to withdraw https://www.village-justice.com/articles/covid-point-sur-droit-retrait-des-salaries,34403.html
Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
CHHUM AVOCATS (Paris, Nantes, Lille)
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