Firms at a standstill, teleworking, short-time working … Many workers have seen their situation change in recent days. Others continue to be endangered by their employers. Instructions for use during crisis periods, for use by employees.
“Since the confinement, nothing has changed, we have received orders: respect distances of one meter, do not shake hands … But no device has been put in place to protect themselves and others, we have no gel, no gloves or mask, ”worries a Toulouse employee of Amazon, this March 19, in Liberation. Some employees may meet up to 90 customers to deliver each day. This worried anger is mounting everywhere, while many managers of industrial sites are still hesitant to close temporarily.
“We don’t refuse to work, but the guys are worried. Employees and subcontractors, there are more than 10,000 on the site, “said a unionist from Atlantic shipyards in Saint-Nazaire, in West France, while confinement has just been established. “When we ban gatherings, ask people to stay at home and not even go to the parks, here we all mix. No gel, no masks. The workshops were finally closed for the week.
Banking activities and branches remain open, considered essential by the government. “In many agencies, employees are forced to work in front of customers without means of protection (…) despite their obligation of result in terms of occupational health”, denounces the unionists South of the Caisse d ‘ savings, in a press release dated March 19. “The culpable negligence of certain presidents of regional savings banks could cost hundreds of lives of employees and customers. According to the union, management has so far refused to provide “a regular update.”
THE EMPLOYER MUST PROTECT THE HEALTH OF HIS EMPLOYEES
Corona virus or not, the employer has an obligation to protect the health of his employees. Defined in article L4121-1 of the Labor Code, this obligation is a consideration for the link of subordination which binds all employees to their employers. It is he who must provide the necessary materials (gels, masks), guarantee hygiene (strengthening of cleaning of workplaces, ventilation of premises) and set up a work organization respecting the instructions issued by the public authorities ( opening of new rooms for breaks, protective glass for the reception of the public, teleworking, quarantine, cessation of activity). If these obligations are not met, employees can use their right of withdrawal.
RIGHT OF WITHDRAWAL
Employees who believe that their work situation presents a serious and imminent danger can withdraw from their work station. This provision of the law (article L4131-1. Of the Labor Code) applies to the risk of contagion – in the same way as when the employee considers that he is in the presence of a dangerous machine or in a situation of insecurity due lack of staff, for example. People who exercise their right of withdrawal do not have to prove the existence of the danger. It is enough to have reasonable grounds to believe that this danger exists. Working in contact with the public without a protective mask, in the midst of a coronavirus epidemic, can perfectly justify exercising the right of withdrawal. As well as the obligation to take public transport to reach his place of work.
An employee who exercises his right of withdrawal remains at the disposal of his employer, at home if all of his workplace is considered dangerous. Or in his workplace, away from the area considered dangerous. “Being entitled to withdrawal therefore does not allow you to go home but rather to no longer be in contact with the identified danger,” explains the Solitaires union federation. For example, a teller who would exercise his right of withdrawal, could quite well ask his employer to continue working but without contact with the public. “
The right of withdrawal can be exercised alone or collectively, in the public service as in the private sector. There is no special formality to be fulfilled, but the unions advise surrounding oneself with witnesses, producing a document and informing staff representatives if there are any. As long as the danger persists, the employer cannot ask the employees to resume their activity. No penalty and no deduction of wages may be taken against an employee exercising his right of withdrawal. If the employer disputes the reality of the danger, it will be up to the judge to decide.
In this period of health crisis, at the request of the government, teleworking becomes “the imperative rule for all the positions which allow it”. The implementation of telework normally requires consultation with the Companies’ Social and Economic Committee (CSE), and the signing of a collective agreement. Given the exceptional circumstances, this consultation of the CSE is not compulsory. Nearly 8 million jobs in the private sector (more than 4 in 10 jobs) “are now compatible with teleworking,” said the Ministry of Labor. “Teleworking nevertheless requires the agreement of the employees,” notes Philippe Saunier of the CGT. Material questions must also be settled beforehand. For example: does your accommodation allow it? We can add the following question: “Do you have children to babysit?” Union officials advise people who cannot manage their own homes to accept telework.
The conditions for exercising telework (article L1222-9 of the French labor code) continue to apply. Namely, the employer must provide the necessary equipment and cover the costs incurred (telephone calls, Internet connection, repairs, etc.). It must also provide an appropriate technical support service. Employees must define with their employer the hours to which they can be reached. And any accident occurring at the place where teleworking is carried out, during the exercise of professional activity, is presumed to be a work accident.
In the event of total or partial closure of workplaces, employees may be placed on “partial unemployment”. It is up to the employer to make the request, but it is not the employer who decides, and there are conditions to be fulfilled, for example consultation with employee representatives. It is then the prefect – or Regional Directorate for Business, Competition, Consumption, Labor and Employment (Directer) – who decides based on the content of the file. These conditions for obtaining partial unemployment could change in the coming days. All the companies concerned by the closure order of March 14, 2020 are already eligible for partial activity, in particular those which are subject to a closure obligation – restaurants, shops, etc. (read here). 400,000 workers have been put on partial unemployment since the start of the health crisis, according to Minister of Labor Muriel Pénicaud, or 1.5% of all workers.
Partial unemployment compensates employees up to 70% of gross salary (about 84% of net salary), it is paid for by the state. The employees concerned will therefore see their incomes decrease, unless their employers – or the State – decide to supplement. The Minister of Labor has also announced that a similar system of short-time working, with payment of 80% of the amount of wages, will be set up for childminders and home jobs (cleaning women) who can no longer provide their contracts.
Except for a situation of partial unemployment, if an employee is sent back to his home by the employer, the salary remains due by the latter. The employee is therefore advised to keep a written record of this request. An employer does not have the right to require his employee to take paid vacation or RTT.
CHILDCARE FOR CHILDREN UNDER 16
Employees can be placed on sick leave and compensated if they have no childcare solutions for their children under the age of 16.The judgment can be issued for a period of 1 to 21 days. This measure can only concern one of the parents at the same time (but it is possible to split the judgment or share it between the parents). Employees must therefore provide a certificate indicating name, age, school, place and the period of closure of the school concerned. The daily allowances will be collected from the 1st day, without waiting period.
ON THE PRECARIOUS SIDE
Temporary workers, subcontractors, part-time civil servants and intermittent workers are particularly worried. How to obtain the maintenance of their wages when the end of their contracts was already scheduled? Several unions have alerted to the situation of these people on precarious contracts, knowing that employers have already announced that they are prematurely ending (which is illegal) in various fixed-term contracts, and while the conditions of unemployment compensation have hardened since last fall. “We demand immediate measures which allow all employees regardless of their status to benefit from the same protection against the coming crisis and therefore the maintenance of wages for temporary workers, temporary workers, employees of subcontractors, Announced the Solitaires union federation. For the moment, no guarantee has been made to them.