Social Emergency Health Measures: Understanding the preliminary ordinances

Yesterday [25thMarch], twenty-five ordinances issued under the Emergency Law No. 2020-290 of 23rd March 2020 to deal with the Covid-19 outbreak were presented to the Council of Ministers and are expected to be published by Friday [27th March].

The first three draft ordinances under Article 11 [on labour law, social security law and civil service law] have finally been unveiled and will remove many of uncertainties for employers and employees.

The ordinance on emergency measures relating to paid leave, working hours and rest days

At a time, when many companies not included in the sectors subject to closure by the Authorities are concerned that their applications for short-time working (or partial activity) will be rejected, the issue of imposing paid holidays and RTT days for employees during the containment period is vital.

If the ordinance allows for derogations from both social public policy and CBA provisions, the decisions will have to be justified in the company's interest in view of the economic difficulties relating to the spread of covid-19.

Employers will only be able to benefit from a certain flexibility with regard to the conditions and limits set by the ordinance, and this until 31 December 2020.

• The employer may, subject to the conclusion of a branch or company agreement, impose the taking of or modification of a maximum of six working days of paid leave, subject to a notice period of one clear day. The limit applies to all paid leave in the broadest sense, i.e. both paid leave earned (N-1) and paid leave being earned (N), even before the start of the period during which the leave should normally be taken.
• The employer may unilaterally impose the taking of RTT days, flat-rate rest days and rest days included in a Time Savings Account (“Compte d’Epargne Temps” or "CET"), subject to a notice period of one clear day, and this up to a limit of 10 days.
• For those companies deemed as “of particular necessity to the security of the Nation or the continuity of economic and social life”, derogations in terms of working hours and weekly and Sunday rest times have been put in place:
  • The maximum daily working time can be lengthened to up to 12 hours;
  • The maximum daily working time of a night worker may be lengthened to up to 12 hours;
  • The daily rest period may be reduced to 9 consecutive hours maximum;
  • The maximum weekly working time may be increased to 60 hours.
  • The weekly working time of the night worker may be extended to up to 44 hours;
  • A derogation from the Sunday day of rest by allocating the total weekly rest period over a rota system.

The ordinance on the temporary modification of the terms and conditions of allocating additional compensation as provided for in Article L. 1226-1 of the French Labour Code and on the exceptional modification of the deadlines and conditions of payments made under the profit-sharing and incentive schemes

• The conditions for the allocation of an allowance in addition to the daily allowance received in the event of sick leave or an occupational accident in the case of a serious and exceptional health risk, and particularly in the context of the epidemic for those who are subject to a measure of isolation, eviction or containment at home and those who are the parents of a child under the age of 16, are modified. This is particularly the case in the removal of the one-year seniority condition provided for in Article L.1226-1 of the French Labour Code.
• The definition of those employees considered eligible has been widened to include home-based workers, seasonal workers, intermittent workers and temporary workers.
• With regard to employee savings plans, the deadline for the payment of amounts allocated under a profit-sharing or incentive plan has been extended to 31st December 2020.

Many uncertainties remain in particular with regard to the conditions of application of short-time working (partial unemployment), or the deadline and modalities of payment of the exceptional purchasing power bonus (“PEPA”) as well as the modifications to the modalities of the information-consultation procedures of the CSE and the suspension of ongoing electoral processes.

Until such ordinances have actually been issued, we recommend that all companies exercise the utmost caution in making emergency decisions as these should be based on government decisions.

Decree n°2020-325 relating to the status of partial activity has just been published today. However, it only partially answers some of the legitimate questions that companies have in the constitution of their files. We will devote a special flash to this subject to keep you informed.