Our Firm has summarised below your scope of action, in the context of the sanitary crisis we are currently experiencing, in the following FAQ, on the basis of the measures implemented to date.
Are employers under the obligation to implement teleworking within their companies?
Employers have a strict obligation to ensure safety results, and must therefore provide for the physical and mental safety of their employees. Thus, they must take all steps to protect the health and safety of their employees.
In this respect, the Government says that taking into account the sanitary crisis and containment situation, teleworking is to be preferred.
Is it still possible to apply for partial activity?
Companies may still apply for partial activity on the dedicated portal of the administration https://activitepartielle.emploi.gouv.fr/aparts/.
To date, according to the Ministry of Employment, over 5 million employees are now subject to short time working in 470 000 companies.
Is it possible to be both subject to (i) teleworking and (ii) partial activity mechanism (named chômage partiel) “in full”?
From the moment an employer applies for authorization to cease its activity in the context of the “partial activity mechanism”, its employees can no longer work. If the employees continue to work, the employer commits a fraud and is exposed to penalties in this respect.
According to the statements of Muriel Pénicaud and her Labour Ministry “Subjecting employees to short time working (partial activity) is not compatible with teleworking. Where an employer asks an employee to telework whereas the latter is subject to partial activity, this amounts to a fraud and is considered as illegal work”.
If the State notes that an employer has committed a fraud, the State may ask the employer to reimburse all of the sums it has received under the partial activity mechanism.
Various other penalties apply, which may be cumulated:
- impossibility to receive public aids in terms of employment and vocational training, for a maximum period of 5 years.
- 2 years’ imprisonment and a financial penalty of €30 000, pursuant to Article 441-6 of the French Criminal Code.
- However, it is possible to reduce the activity of employees who are teleworking and to apply for “partial activity mechanism” for the time remaining and not worked.
Can an employee on sick leave benefit from the partial activity mechanism?
In the event the employee is on sick leave at the time the company implements partial activity within the company, the prevailing criterion is the classical criterion, i.e. the first cause of suspension of the contract of employment.
Thus, if an employee is on sick leave, he/she cannot be entitled to receive both the sick pay and the allowance which may be paid to him/her under the partial activity mechanism.
The employee only receives sick pay.
Can an employee carry out another activity during the non work-hours under the partial activity mechanism?
An employee may carry out another activity during the non-work hours without authorization from his/her employer, from the moment the contract of employment does not include an exclusivity clause.
If the contract of employment includes an exclusivity clause, the employee must obtain his/her employer’s express approval.
Employees remain subject to a duty of loyalty. Under those circumstances, an employee cannot work for a competitor or as a freelance in the event the activity competes with that of his/her employer.
How can social dialogue be maintained in times of containment (with staff representatives)?
Ordinary rules of law authorise the holding of meetings via videoconference from the moment the technical device ensures that the members of the committee are identified and actually attend the meetings.
As a matter of principle, the number of meetings held via videoconference is limited to three per calendar year, unless otherwise agreed by the employers and the elected members of the Social and Economic Committee (Comité social et économique – CSE)
As for the required exchanges between the Secretary and the Chairman of the CSE regarding the agenda of the meetings, they may be made by email.
Where a CSE has to issue an opinion via video conference, ballot secrecy must be ensured where the members of the CSE request a vote by secret ballot.
Is it possible to initiate or continue an information-consultation process related to a proposed restructuring involving the setting up of a PSE (Employment safeguard plan– redundancy plan)?
Various situations may arise:
- Regarding the files for which the process is achieved and the request for approval has already been sent (before 12 March): the DIRECCTE (French labour administration) should make a decision explicitly
- Regarding the Employment Safeguard Plans for which an information-consultation process is ongoing:
- The process is maintained via the technological resources, from the moment the employee representative institutions and the representative trade unions have the possibility to play their role
- If the process is maintained despite the unfavourable opinion of the employee representative institutions and of the representative trade unions: there is a risk as to the regularity of the process, where the Social and Economic Committee did not have the possibility to play its role.
- Regarding companies on the verge of initiating an employment safeguard plan: the Ministry recommends that companies postpone the announcement, taking into account the risks as to the regularity of the information/consultation and the difficulties to have a social dialogue that complies with the roles of the bodies.
- Regarding the files approved by the bodies: It is recommended that the Employment Safeguard Plan be implemented by adapting the corresponding timetable, and in particular the notices of dismissals, in light of the sanitary crisis.
Is it possible to finalise the ongoing dismissal procedures?
From a legal perspective, nothing prevents employers from dismissing employees, and the Government seems to focus on dismissals for economic reasons.
However, the procedure should be adapted in light of the containment situation.
Is it possible to conclude mutually agreed termination agreements?
Nothing prevents employers and employees from concluding a mutually agreed termination agreement. Yet, some practical difficulties may arise during the containment regarding the holding of the meetings and the time periods for obtaining the administration’s approval. The ordinance n°2020-306 dated 25 March 2020 seems to suspend the time periods up to 24 June 2020. Yet, some precisions are expected to be made in this respect in the next few days.
Our Firm remains at your disposal for any further information and for any assistance you may need.