The first COVID-19 cases appeared in France a few weeks ago and French people have been in lockdown since March 17. The repercussions of this pandemic are significant, and the Government has been authorized, by Emergency Act No. 2020-290 of 23 March 2020, to take measures through ordinances (which means that no debate is required before Parliament, and the ordinances are voted directly by the Council of Ministers).
Several ordinances on employment-related matters were adopted by the Council of Ministers on 27 March 2020, and published. A decree was also issued to extend the rules of reduction in activity (short-time working).
1. Adjustments to rules relating to paid leave and rest days
The first ordinance, which came into force on 26 March 2020, deals with paid holidays, rest days and working hours.
Subject to being covered by a collective agreement (entered into at company or sector-wide level) permitting this, companies may unilaterally require employees to take accrued paid holidays (for employees who have not set the dates of their holidays) or to modify holidays dates (for employees who have already set these dates), up to a maximum of 6 working days of paid holidays.
Moreover, when the company’s interest justifies it, in view of the economic difficulties linked to the spread of COVID-19, the company may unilaterally set or modify the dates of certain rest days. Those rest days result from the reduction of working time, also known in France as “RTT days”, or are awarded to employees whose working time is calculated as a number of days per year rather than as a number of hours per week, and also days which have accrued to an employee. The company can set or modify the dates for up to ten days.
The notice period to be given to employees by an employer in this respect may not be less than one clear day. These measures will apply until 31 December 2020.
2. Softening of working time rules
Certain sectors of activity which are “particularly necessary for the security of the Nation and the continuity of economic and social life” will be temporarily authorized to derogate from France’s strict rules on working hours. The list of the sectors concerned (energy, telecommunications, logistics, transport, agriculture and food processing, etc.) will be published in the coming days by decree.
Employees will be able to work for up to 12 hours a day (as opposed to the usual 10) and up to 60 hours a week (as opposed to 48 hours in normal times). Flexibiliy will also be available regarding night workers, who may be required to work up to 12 hours per 24 hours or 44 hours a week on average. The minimum daily rest period is reduced from 11 to 9 hours. The principle of prohibition of Sunday work is also relaxed, with the possibility of shifts.
Companies using these flexibilities must inform their social and economic committee (“comité social et économique”, or CSE) and the DIRECCTE (the French labour authorities) without delay and by any means.
These measures also apply until 31 December 2020.
3. Delayed payment of sums payable under profit-sharing schemes
For those companies which have implemented compulsory or voluntary profit sharing schemes (i.e. “participation” or “intéressement”), the payment of sums to be awarded to employees under these schemes can be deferred until 31 December 2020, instead of 30 June 2020.
4. Increased use of short-time working
The Government has enacted two sets of legislation regarding short-time working, as follows:
- Decree No. 2020-325 of 25 March 2020, which came into force on 26 March 2020, and
- Ordinance No. 2020-346 of 27 March 2020
As a reminder, short-time working or partial activity (better known as partial unemployment) is a scheme that allows employees to reduce or temporarily suspend their activity. During this period, the employer pays compensation to the employee who is placed in a position of partial activity, and the State pays to the employer a certain level of compensation for the hours for which the individual is unemployed.
According to the Ministry of Labour’s website, employers wishing to benefit from this scheme must satisfy one of the following conditions:
- the company is required by the Government’s order to close some non-essential businesses;
- the company is facing a reduction in activity and/or supply difficulties;
- it is impossible for the company to put in place the required preventive measures which are necessary for the protection of employee health.
All employees with an employment contract are eligible for “partial activity”, including, as a result of the new ordinance, employees whose working time is calculated on the basis of a set number of days / hours worked per year, and employees of companies located outside France who have no place of business within France.
The employer’s request must be sent online (here) to the prefect of the geographical district (“département”) where the establishment concerned is located. It must specify the reasons justifying the recourse to partial activity, the foreseeable period of under-activity and the number of employees concerned. The employer needs to file its request within 30 days from the date the employees commence partial activity. The decree has reduced the maximum time response available to the authorities (48 hours instead of 15 days) from receipt of the request.
When granted, the authorization for partial employment may cover a maximum period of 12 months (instead of 6 months previously).
In principle, the employer must inform and consult the CSE prior to the introduction of short-time working, but in view of the circumstances, the decree provides that the CSE’s opinion may be obtained up to two months from the employer’s request. Companies with no elected employee representatives must simply inform their employees in this respect.
Employees are not able to reject partial activity (including protected employees, according to the ordinance).
Employees in partial activity are not entitled to payment of a salary, but receive a specific indemnity for each hour (this indemnity is not subject to social security contributions). The new texts do not change the amount of the indemnity paid to employees (still equal to 70% of the gross salary). However, the decree aligns the amount of partial activity allowance paid by the State to the company with that of the partial activity indemnity paid by the company to employees up to a limit of 70% of the employee’s gross salary, and up to a limit of 4.5 times the amount of the gross minimum monthly remuneration.
As of 25 March 2020, nearly 100,000 companies had applied for partial activity, affecting 1.2 million employees, for a total amount of nearly 4 billion euros according to the Ministry of Labour, which has set up a telephone helpline to help companies with these procedures.
5. Amendments to exceptional premium
The French Government last year implemented specific temporary legislation aimed at authorizing employers to pay to their employees a “premium” aimed at improving the purchasing power of workers, which is exempt from tax and social security contributions provided certain conditions are met. This possibility has been permitted this year and the Government has used this scheme in the context of the Covid crisis.
An ordinance published on 1st April 2020 indeed provides that:
- companies which have not implemented a voluntary profit sharing scheme are allowed to pay this exceptional premium up to 1,000 Euros gross
- companies which have implemented voluntary profit sharing scheme are allowed to pay up to 2,000 Euros gross
The amount of such premium may be adjusted based on the employee’s working conditions in the context of the pandemic. Payment of the premium is to occur no later than 31 August 2020.
6. Increased powers for occupational health services
Occupational health services are now mobilized to participate in the fight against the Covid-19 epidemic. In this respect, they will in particular be authorized to:
- prescribe and, if necessary, renew a period of sick leave in the event of infection or suspected infection with Covid-19 or as part of preventive measures
- carry out tests for Covid-19 according to a protocol to be defined by decree
7. Adjustments to rules relating to elections and running of employee representative bodies
One of the most recently published ordinances also introduces emergency measures relating to employee representative bodies:
- the suspension of electoral processes that have been initiated (with effect from 12 March 2020), or the granting of an additional 3 months period for employers who have not yet initiated the electoral process, as well as a derogation from the rule on the organisation of partial elections
- the extension of the time limits for administrative and judicial claims regarding electoral disputes
- the extension of mandates of staff representatives existing on 12 March 2020
- the possibility for elected members of the CSE to hold its meetings by videoconference or telephone conference, or even, as a subsidiary option, by instant messaging