Employees' right of withdrawal allows them to stop work and leave their work if there is a danger they consider serious and imminent for their health and safety.
According to his press release of March 15th, 2020, Muriel Pénicaud specified the new working methods to be adopted in order to fight against the epidemic of the Coronavirus, in the following terms: "The most effective means to fight against the spread of the coronavirus is to limit physical contact. Everyone, employer and employee, can help to combat this spread, by using telework whenever possible. "
However, with regard to jobs not eligible for teleworking, it was specified that the following rules must imperatively be respected: "Barrier gestures and rules for distance from work are imperative. Companies are invited to rethink their organizations to limit meetings to what is strictly necessary, most can be organized remotely, Limit grouping of employees in small spaces, Non-essential travel must be canceled or postponed. The work organization must be adapted as much as possible, for example the rotation of teams. "
The next day, Monday, March 16, 2020, in his televised address, the President of the Republic urged companies to protect their employees in the following terms: "All companies must organize to facilitate remote work, and when this will not be not possible, they will have to adapt their organization tomorrow to enforce these barrier gestures against the virus, that is to say protect their employees, or, when they are self-employed, protect themselves. […]. I tell you with great solemnity this evening, let's listen to the caregivers, who tell us: if you want to help us, you must stay at home and limit contact. "
In these conditions, what about the possibility of employees necessarily exposed to the risk of contamination in their workplaces to exercise their withdrawal rights and to what extent the exercise of this right is justified by the risk of covid19 infection?
1) Reminder of the general system of the right of withdrawal (droit de retrait)
1.1) Concept and definition of serious and imminent danger (danger grave et imminent)
Article L.4131-1 of French Labor Code provides that:
"The worker immediately alerts the employer to any work situation of which he has reasonable grounds to believe that it poses a serious and imminent danger to his life or his health and of any defect which he finds in the protection systems. .
He can withdraw from such a situation.
The employer may not ask the worker who has made use of his right of withdrawal to resume his activity in a work situation where a serious and imminent danger persists, resulting in particular from a defect in the protection system. "
A ministerial circular N°93-15 of March 25th, 1993 specifies the serious danger that it can be characterized when it is likely to lead to death or prolonged permanent or temporary incapacity. With regard to imminent danger, the same circular specifies that any danger likely to occur suddenly within a short time can be described as imminent.
Also, by virtue of their right of withdrawal, all employees have the right to interrupt their work and leave their work station.
For example, the right of withdrawal of 126 SNCF agents could have been legitimately exercised following an attack by controllers and since the attackers had not been arrested. (Cass, soc, October 22, 2008, n ° 07-43740)
Furthermore, the right of withdrawal can also be exercised in the event of mental distress.
For example, trainers at an apprenticeship training center had exercised their right of withdrawal due to increasingly difficult situations due to the behavior of apprentices. They therefore invoked a situation of permanent stress and a refusal to listen and support from management. According to the employer, it was only a reaction following the disciplinary sanction of one of their colleagues.
The Court of Cassation nevertheless held that the situation of mental distress, having been observed by the industrial doctor, constitutes a reasonable reason to believe that this situation presented a serious and imminent danger. (Cass, soc, May 31, 2017, n ° 15-29255)
1.2) Reasonable reason
The notion of danger is necessarily subjective.
In fact, to be legitimate, the employee must have a reasonable reason to believe that the work situation presents a serious and imminent danger, when in the end the danger is not confirmed or is less serious than expected
This distinction is essential, since the danger has not been effective and real, it is enough that the employee has reasonably estimated that there was a serious and imminent danger to his health, it being specified that this concept is appreciated by the judges of the point of view of the employee taking into account his knowledge and experience.
In this regard, in a judgment published on May 9, 2000, the Court of Cassation quashed the judgment of the Court of Appeal which had dismissed the employee's requests on the grounds that: “the execution of the works did not require the implementation no special protection for employees ”.
The Court of Cassation judges:
- "By ruling in this way, without seeking, as she was invited to do, whether the employee had reasonable grounds to believe that the work situation presented a serious and imminent danger to his life and his health and required a measure collective protection intended to prevent falls of persons by application of article 5 of decree n ° 65-48 of 8 January 1965, the court of appeal deprived its decision of legal basis; »Cass soc, May 9, 2000, n ° 97-44244)
Also, for example, the right of withdrawal of a truck driver who was not certain that the repair of his truck had been carried out was deemed justified, refused to drive it as soon as this truck had prior object of a traffic ban. (Cass, soc, July 5, 2000, n ° 98-43481)
Also, the situation is assessed on a case by case basis by the judges in order to take into account the experience of the employee, his qualification of his seniority, his experience, his age, his health and the circumstances of the moment.
It should nevertheless be specified that in the absence of an established legal or jurisprudential definition of serious and imminent danger or of reasonable grounds, the exercise of the right of withdrawal takes on a legal insecurity for the employee who exercises it.
1.3) The consequences of exercising the right of withdrawal (Droit de retrait)
The employee must first of all immediately alert the employer of the existence of serious and imminent danger, the law does not however lay down any formal condition relating to this alert.
Then, the principle is that the legitimate exercise of the right of withdrawal must not entail any deduction of remuneration: "No penalty, no deduction of wages may be taken against a worker or a group of workers who have withdrawn from a work situation which they had reasonable grounds to believe posed a serious and imminent danger to the life or health of each of them. "(Article L.4131-3 of the Labor Code)
The employee must therefore receive his wages until the employer has taken the necessary measures to put an end to the danger, and cannot be forced to return to work.
Also, the employee is entitled to take note of the termination of his employment contract if he does not receive his wages following his right of withdrawal. (Cass, soc, July 1, 2009, n ° 08-42074)
He can also refer to the judge in summary proceedings to obtain payment of a provision. (Cass, soc, March 31, 2016, n ° 14-25237)
Please note, however, an employer who considers that the right of withdrawal is not justified may withhold wages, without having previously contacted the judge to examine the merits of the right of withdrawal. (Cass, crim, November 25, 2008, n ° 07-87.650). It is then up to the employee to provide proof that the right of withdrawal was justified.
Likewise, Article L4131-3 of the Labor Code provides that the reasonable exercise of the right of withdrawal may not give rise to any disciplinary sanction.
Also, must be declared null, the dismissal of an employee motivated by the legitimate exercise of his right of withdrawal, the employee must therefore be reinstated and obtain the unpaid wages. (Cass, soc, January 28, 2009, n ° 07-44256)
Conversely, if it were established that the exercise of the right of withdrawal was illegitimate, the employer could take disciplinary measures due to the employee's unjustified absence, which could go as far as dismissal for gross negligence.
In this regard, dismissal for gross negligence of employees who no longer had reasonable grounds to believe that there was a serious and imminent danger was declared justified. The workers refused to return to work, despite the employer's orders. (Cass, soc, September 24, 2013, n ° 12-11532)
2) The specifics of the right of withdrawal due to the coronavirus
As of March 12th, 2020, the solidarity union denounced the various communications from the government because of a very anxiety-provoking nature, and at the same time referring coronavirus protection to the individual responsibilities of employees via barrier gestures.
In fact, from the first week of confinement, employees from different sectors invoked their withdrawal rights.
As an example, on March 17, 2020, the Postmen of Grenoble and Marseilles asserted their rights of withdrawal considering that the measures taken were insufficient to protect their health and that of their customers, denouncing in particular an organization in the sorting centers which did not allow the minimum distance between people of at least 1 meter.
The following day, Bruno Lemaire, Minister of the Economy reacted by urging all employees of the activities essential to the functioning of the company to go to work.
In the same direction, Emmanuel Macron declared on March 19: "We must continue to produce and make the country turn"; the Elysee considering that the confinement was not contradictory with the continuation of the work.
This, while at the same time, the medical community demanded the strictest containment possible in order to protect everyone and effectively fight against the spread of the virus.
In this slightly schizophrenic context, can the risk of infection with covid 19 justify the exercise of the right of withdrawal?
2.1) The government's position on the right of withdrawal
According to the Ministry of Labor, once all of the government's health recommendations have been implemented by the employer, the right of withdrawal would not be justified.
These health recommendations issued by the government are as follows (Q&A on Covid19):
a) Regarding general health recommendations
It is necessary:
- Set up telework as much as possible and avoid professional travel;
- Ensure compliance by employees with barrier gestures (frequent hand cleaning and compliance with a minimum distance of one meter, cough or sneeze into the elbow, use single tissues);
- Arrange workstations to allow a distance of one meter between employees;
- Reorganize the concerned workstation (s) after risk analysis, giving priority to teleworking;
- If teleworking is impossible, ensure that employees avoid places where fragile people are found, any outing or meeting that is not essential (conferences, meetings, etc.), close contacts (canteen, elevators, etc.).
b) Regarding employees assigned to a work station in contact with the public
“If the contacts are brief, the“ barrier ”measures (mesures barriers) , in particular those relating to the limitation of contacts and very regular hand washing are sufficient.
If the contacts are prolonged and close, it is necessary to supplement the “barrier” measures by maintaining a zone of distance (mesure de distanciation sociale) of one meter between your employee and the customers, by cleaning the surfaces with a detergent product, as well only by regular and soaped hand washing. "
c) The measures to be taken if one of the employees is contaminated
- Work spaces occupied by an employee who has been infected must be cleaned according to a specific protocol:
- “equipment for people in charge of cleaning floors and surfaces with the wearing of a single-use gown, household gloves (the wearing of a respiratory protection mask is not necessary due to the absence of aerosolization by soils and surfaces);
- soil maintenance: favor a wet washing-disinfection strategy so that:
o floors and surfaces are cleaned with a disposable washing strip impregnated with a detergent;
o the floors and surfaces are then rinsed with potable water with another disposable washing strip;
o sufficient drying time for these floors and surfaces is left;
o floors and surfaces must be disinfected with bleach diluted with a single-use washing strip different from the previous two. "
- The employer must inform other employees who may have been in contact with an infected employee
Finally, there is the obligation of the employer to update the Single Risk Assessment Document.
Also, according to the government, the right of withdrawal would not be acceptable on the sole assumption that the employer did not comply with these recommendations.
2.2) What about the judges' assessment of the legitimacy of the right of withdrawal (droit de retrait)
It should be noted, however, that the Government's communications and its position on the legitimacy or not of the right of withdrawal completely elude the concept of "reasonable grounds to believe that there is a serious and imminent danger" which must be assessed from the point of view of the employee, and not on the basis of objective and concrete measures which would be implemented by the employer.
Fortunately, the appreciation of the validity of the right of withdrawal fortunately falls exclusively to the judge.
In these circumstances, even if the list of measures above had been respected by the employers, one may wonder about the position that the trial judges will take with regard to the assessment of the "serious and imminent danger of the employee perspective ”in the context of a global coronavirus pandemic subjecting employees not only to confinement, but also to a continuous flow of information and particularly frightening injunctions, such as the macabre counting of the number of deaths every day , information on the high contagiousness of covid19, frequent alerts on radio and TV on the need to respect barrier gestures, requests from the medical community to confine themselves as strictly as possible, the saturation of the hospital system.
In this highly anxiety-provoking context of the proliferation of a potentially lethal disease, can we seriously criticize an employee for having exercised his right of withdrawal to protect himself, his family and his loved ones?
3) The right of alert of the CSE: an alternative to secure the right of withdrawal (droit de retrait)
Article L4131-2 of the Labor Code provides that: “The staff representative on the social and economic committee, who finds that there is a cause of serious and imminent danger, in particular through a worker, on alert immediately the employer according to the procedure provided for in the first paragraph of article L. 4132-2. "
It is not a collective prerogative of the CSE, given its urgency, the alert can be issued by a member of the CSE individually.
To do this, he must not only immediately notify the employer, but also record this opinion in a special register, the notice must contain the following information:
- The indication of the workstation (s) concerned;
- The names of the employees concerned;
- The nature of the danger and its cause. (Article D. 4132-1 of the labor code)
This immediately triggers the employer's obligation to investigate with the CSE member who reported the alert, and to take the necessary steps to put an end to the danger. (Article L.4132-2 of the Labor Code)
This may allow employees, if necessary and according to the conclusions of the employee survey, to validly exercise their right of withdrawal.
In case of divergence on the reality of the danger or the way to put an end to it, the CSE is urgently convened and at the latest within 24 hours.
The employer must also immediately inform the labor inspector and the Carsat prevention service agent who can attend the committee meeting (C. Trav., Art. L. 4132-3).
In the absence of agreement between the employer and the majority of the social and economic committee on the measures to be taken and their conditions of execution during the meeting, the labor inspector is immediately informed by the employer. The labor inspector then implements either one of the formal notice procedures or a summary procedure in order to put an end to the situation. (Article L.4132-4 of the Labor Code)
On the other hand, the CSE does not have the possibility of stopping work.
In the same vein, the SUD PTT federation has assigned the management of La Poste for interim measures to "compel it to assess the professional risks linked to the Covid-19 epidemic" and "identify cases of contamination" among its 250,000 employees and the measures taken as a result. A hearing has been set for April 3, the union said.
Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
Mathilde MERMET-GUYENNET avocat
CHHUM AVOCATS (Paris, Nantes, Lille)
.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