COVID-19 New French measures at the disposal of employers - Key measures promulgated by the French Government to respond to an unprecedented ...
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COVID-19
New French measures at the disposal of employers
Key measures promulgated by the French Government to
respond to an unprecedented situation
29 March 2020
PwC Société d’Avocats
PwC Société d’AvocatsPresentation Title
Agenda
1. Work from home
2. Positions that are not eligible for work from home
3. Work suspension
4. Reduced work activity
5. Supplemental work days (RTT) and vacation /
Consultation with employee representatives
6. Profit-sharing
7. Postponement of employment related deadlines
8. International mobility
PwC Société d’AvocatsWork from Home
1. Work from home Article L1222-11 of the Labour Code (« LC ») expressly allows, in case of an epidemic, the implementation of “work from home” (“télétravail”), without the need for the employee’s consent. The implementation of work from home in this context is not subject to any specific procedure. Since March 16, 2022, the use of work from home is obligatory for those positions that can be performed off- site, according to the most recent health measures announced by the Ministry of Labour. http://travail-emploi.gouv.fr/actualites/presse/communiques-de-presse/article/coronavirus-covid-19-et-monde- du-travail PwC Société d’Avocats 4
Positions that are not eligible for work from home
2. Positions that are not eligible for work from home In case work from home is not possible (because the position is not eligible, there is a need for continuity of activity, …), employers must strictly apply the health directives relating to « preventive actions » and social distancing rules to limit the physical contact among employees. Preventive actions 1. Regularly wash one’s hands 2. Cough or sneeze into one’s elbow https://solidarites-sante.gouv.fr/IMG/pdf/affiche_gestes_barrieres_fr.pdf 3. Employ single-use tissues and dispose of them 4. Greet without shaking hands or kissing Social distancing rules • Re-think the organisation of the business • Limit the gathering of employees in confined spaces • Adapt the work schedule (rotation of teams) • Limit meetings to the strictly necessary (set up video calls, respect social distancing rules, etc.) • Cancel or postpone travel that is not indispensable to business PwC Société d’Avocats 6
2. Positions that are not eligible for work from home (continued) Since noon on March 17, 2020, circulating outside of one’s domicile is prohibited with the exception of certain activities, notably: Travel between one’s domicile and the place of places of work when it is indispensable for the performance of activity that cannot be performed from home. « work travel that cannot be postponed ( Decree n°2020-260 dated 16/03/2020) Businesses should henceforth provide to employees who must continue to work in their professional workspace a document that demonstrates that the employee benefits from this exception. You may use the following link for a model attestation: (https://www.interieur.gouv.fr/Actualites/L-actu-du-Ministere/Attestation-de-deplacement-derogatoire-et- justificatif-de-deplacement-professionnel) PwC Société d’Avocats 7
Work suspension
3. Work suspension to attend to young children Since March 16, 2020, all schools and centers for young children are closed. In the absence of being able to work from home and find a child-care solution , the employee may « request a paid work suspension, without a grace period that shall extend for the duration of the closure of the schools or the center. » To benefit from the “child attendance work suspension”: The employee must request it from his/her employer (no need to see a doctor first) The employer must complete and submit the form provided online at the following site: https://declare.ameli.fr/ The suspension may be obtained for a duration of between 1 to 14 days. One parent (or person having parental authority) may benefit from the suspension at a time (attestation to be provided by the employee with an indication of the name, child’s age and the school concerned). If the need continues, the request can be renewed by the employee according to the same procedure. PwC Société d’Avocats 9
3. Work suspension for persons at high risk Persons at high risk of developing a severe form of Covid-19 must remain in their domicile and be on work suspension if no work from home is possible. The Social Security Administration is extending, as from March 18, 2020, its online declaration service to such persons : https://declare.ameli.fr/ They may consequently request, without requesting it from their employer or their family doctor, a work suspension for an initial 21 days. This suspension may be applied retroactively to March 13, 2020. The issuance of the work suspension implies that the person’s health condition justifies it and the prior verifications have been made by the medical service of the Social Security administration. PwC Société d’Avocats 10
3. Work suspension for persons at high risk (continued)
The criteria to benefit from these measure, in terms of personal vulnerability, are the following:
• pregnancy
• chronic respiratory ailments (asthma, chronic bronchitis, …)
• cystic fibrosis
• cardiac failure, regardless of the cause
• heart ailments
• stroke victims
• high blood pressure
• dialized chronic kidney failure
• insulin-dependent type 1 diabetes and type 2 diabetes
• persons with weakened immunity
• hepatic disease with cirrhosis
• obesity with a BMI index of at least 40
PwC Société d’Avocats 113. Indemnification to supplement daily allocations (« allocations journalières ») The ordinance of March 25, 2020, which temporarily adapts the conditions for the attribution of the supplemental indemnity set forth under article L.1226-1 of the LC provides for, inter alia: The removal of certain conditions provided under the standard statutory regime for the payment of an indemnity that supplements daily allocations in order to make employees eligible for the indemnity, in an egalitarian manner, regardless, for example, of their seniority or reason for absence, until August 31, 2020. PwC Société d’Avocats 12
Reduced work activity
4. Reduced worked activity “Reduced work activity” is an existing legislative tool for a business that seeks to reduce working hours or temporarily close all or part of its site (a manufacturing or production unit, a department, a workshop, or a team responsible for a project). The regime for this measure is based on articles L. 5122-1 et seq. and R. 5122-1 et seq. of the LC, and is considered both a “collective” measure (i.e. not aimed at an individual) and temporary. In view of the enormity of the health crisis linked to Covid-19, however, the French government decided expand the reduced activity regime by adopting: • Decree n° 2020-325 of March 25, 2020, relating to reduced work activity, and • Ordinance n°2020-346 of March 27, providing urgent measures relating thereto, Further decrees on the implementation of the certain measures are expected to be issued. PwC Société d’Avocats 14
4. Reduced worked activity
Based on article R 5122-1 of the LC « reduced work activity » measures may be used for the following reasons:
1) A difficult economy at large
2) Difficulties obtaining raw materials or energy supply
3) An accident or exceptional weather conditions
4) The transformation, restructuring or modernisation of the business,
5) Any other exceptional circumstance (notably force majeure)
→ Although the Minister of the Economy and Finance considers Covid-19 to be a case of force majeure, but it does not
automatically qualify a business for reduced work activity
→ The Minister of Labour, in its handbook, indicates that the employer should select “exceptional circumstances + coronavirus”
on the request form
PwC Société d’Avocats 154. Reduced worked activity (continued)
• The following employees are affected:
➢ Employees with an employment contract governed by French law performed in France (no seniority requirement, nor
conditions linked to the type of contract, i.e. fixed- or indefinite-term, apprenticeship, etc.) nor conditions linked to working time
(part-time, full-time).
➢ The regime for reduced work activity is notably expanded to include:
- Employees whose working time is annualized in hours or in days, including in case of partial reduction of working time
- Employees who are not subject to statutory or collective bargaining agreement rules on working time (managing executives
(cadres dirigeants), semi-independent sales persons (VRP), etc.
- Parental assistants, house-workers employed by individuals
- Employees of State-owned businesses that are self-insured against the risk of unemployment
- Foreign companies that do not have a branch in France and that employ at least one employee in France
➢ An employee cannot refuse being put on reduced work activity (including “protected workers” provided the reduced
activity measure requested by the employer applies to all the employees of the business, the site, a department or a workshop
in which the person works, to avoid such workers from being singled out)
PwC Société d’Avocats 164. Reduced worked activity (continued)
• The required steps to implement a reduced work activity measure are the following:
➢ The consultation of the works council (CSE), which can be either before or after the employer’s request is submitted to the
administration
- In case the works council is consulted after the submission, the report of the vote by the latter (obligatory, but not binding)
must be sent to the administration within two months from the submission of the request
➢ The request for the authorization of reduced work activity must be sent to the local labour authority (the Direccte) within 30
days as from the reduction of work activity (the company thus can start the reduction of work activity before having obtained
authorization)
- Via a dedicated internet portal (https://activitepartielle.emploi.gouv.fr/apart/)
- For each site concerned. The website will be modified during the month of April to permit a single submission for multiple
sites.
➢ The file examination period by the Direccte is reduced to 2 days as from the date of the receipt of the complete request for
authorization.
- The absence of a response from the administration within this deadline shall be considered tacit acceptance by the
administration.
- The authorization can henceforth be granted for up to 12 months (as opposed to the six months provided under the standard
regime)
➢ If the authorization is granted (either explicitly or tacitly), the employer is to submit a request for indemnification (i.e.
reimbursement for all or part of the amounts allocated to the employees) to the Office of Services and Payments (Agence de
Services et de Paiement/ASP)
PwC Société d’Avocats 174. Reduced worked activity (continued)
The employee who is subject to reduced work activity receives an indemnity from the employer under the following conditions:
• The indemnity is equal to 70% of the amount of gross hourly remuneration that is used by the employer to calculate paid
vacation (i.e. 84% of the net remuneration). This indemnity cannot be less than the hourly minimum wage (8.03 euros)
- An industry-wide collective bargaining agreement, a company-negotiated collective agreement or a unilateral decision by an
employer can provide for a higher rate of indemnification.
• The number of hours indemnified is the difference between the statutory working time applicable within the company (or,
when it is less, the collective working time or the duration stipulated in the employment contract), on the one hand, and the
number of hours actually worked during the period, on the other hand.
- For employees who are annualized or who are not subject to working time rules: the number of hours taken into account for
the indemnity for reduced work activity is determined by converting into hours a number of days or half-days. The rules for
this conversion will be determined by a forthcoming decree.
• The indemnity for reduced working time is not subject to social charges but is subject to CSG/CRDS and income tax
- Concerning the social charges applicable to a supplemental indemnities paid pursuant to a collective agreement or decision
by the employer, it remains an open question as to whether they should be given the same treatment as the main indemnity,
and a response is expected soon from the URSSAF.
PwC Société d’Avocats 184. Reduced worked activity (continued)
The employer receives from the State an “allocation for reduced work activity” under the following conditions:
• The allocation is no longer a fixed sum, but is rather proportional to the remuneration of the employees under-going reduced
work activity. It is equal to 70% of the gross hourly remuneration up to 4.5 times the hourly minimum wage.
- A simulator is available on the Ministry of Labour’s site (http//www.simulateurap.employ.gouv.fr/)
• The hourly rate cannot be less than 8.03 euros (the current hourly net minimum wage), with the exception notably of
apprentices or employees under a professionalization contract (for whom the amount of the allocation corresponds to the amount
of the hourly indemnity received paid to the employee)
• The number of hours that can justify the attribution of the allocation for reduced work activity corresponds to the difference
between the statutory working time for the period in question or, when it is less, the collective working time or the duration
stipulated in the employment contract, on the one hand, and the number of hours worked during the period, on the other
hand.
- For employees who are annualized or who are not subject to working time rules: the number of hours taken into account for
the allocation for reduced work activity is determined by converting into hours a number of days or half-days. The rules for
this conversion will be determined by a forthcoming decree.
• The hours not worked give rise to the payment of an allocation for reduced work activity up to the limit of 1000 hours per
employee. The ministry of Labour has announced that this limit will soon be increased to 1,607 hours.
PwC Société d’Avocats 194. Reduced worked activity (continued)
• The employer that does not request or that does obtain the authorization from the administration may be sanctioned by a
payment of additional salary or damages if work was reduced
• The administration can define undertakings made by the employer in exchange for the allocation that is paid to it (the undertaking
to maintain employment, training, a staff development plan (CPEC), etc.) when the employer has already used reduced work
activity measures within the preceding 36 months
PwC Société d’Avocats 20Supplemental rest days (RTT) and vacation – negotiation
5. Supplemental rest days (RTT) and vacation – negotiation In conformity with article L3141-16 of the LC, the employer may, on the basis of these exceptional circumstances, re-schedule vacation that has already been scheduled by the employee. If the employee has not requested vacation, the employer cannot impose them. If under the company or industry collective agreement the employer can freely determine the supplemental rest days (JRTT), it can modify their schedule by respecting the required notice period. It is still possible to negotiate with union representatives to conclude a company collective agreement that adapts company rules in these areas to the situation (adapting the schedule for paid vacation, use of days off, etc.) PwC Société d’Avocats 22
5. Supplemental rest days (RTT) and vacation – negotiation (continued) The « Ordinance on urgent measures concerning paid vacation, working time and rest days » dated March 25, 2020, provides employers with the following mechanisms: By means of an intra-company collective agreement (which pre-supposes that the company has union delegates), in the absence of an industry-wide agreement: • the ability to require employees to take vested paid vacation or modify the dates thereof • The ability to split vacation periods without having to obtain the approval of the employee up to a maximum of six working days of vacation, and subject to a notice period of one full day. By unilateral decision: • Impose vested supplemental rest days, full days or half-day of rest acquired by the employee who is subject to an annualised working time or modify the dates thereof • Impose the use of days that have been booked in a rest day account (compte épargne temps) up to a maximum of 10 days and when the interest of the business justifies it with respect to Covid-19 related economic hardship The periods of vacation or RTT imposed or modified cannot extend beyond December 31, 2020. PwC Société d’Avocats 23
5. Supplemental rest days (RTT) and vacation –
negotiation (continued)
The « Ordinance on urgent measures concerning paid vacation, working time and rest days » dated March 25,
2020, permits businesses in sectors considered essential for the continuity of economic life and the security of
the nation (as determined by decree):
• To increase the maximum working day to 12 hours per day,
• To increase the maximum daily working time for a night worker to 12 hours per day,
• To reduce the duration of the minimum daily rest period to nine consecutive hours,
• To increase the absolute and average weekly working time to 60 hours per week,
• To increase the weekly working time to 48 hours per week over a period of 12 consecutive weeks,
• To increase the weekly working time for a night worker to 44 hours per week over a period of 12 consecutive
weeks.
If the employer uses at least one of the measures permitted, it must immediately inform its works council (CSE)
and the labour authorities (DIRECCTE).
• To derogate from the rules concerning Sunday rest (this applies to businesses in these sectors and also
businesses whose support is necessary to conduct their main activity)
PwC Société d’Avocats 245. Consultation of the work council In conformity with L2312-8 du LC, the works council should be consulted in case of a significant modification of the manner in which work is organised, the use of reduced working time, and/or a derogation of the rules relating to rest days. The use of video conferences is encouraged to avoid physical contact. If there is an emergency, an employer can impose safety measures regarding the organisation of work before carrying out this consultation. The law «on emergency measures in response to the covid-19 epidemic » of March 23 allows the government to takes measures aimed at modifying the procedures for informing and consulting employee representatives in order to obtain their vote within the required deadlines PwC Société d’Avocats 25
Profit-sharing
6. Profit-sharing The Ordinance of March 25, 2020, modifying as an exceptional measure the deadlines and the conditions for payment of amounts paid into mandatory and voluntary profit-sharing plans provides that: • The deadline for the payment of amounts attributed in 2020 to a mandatory or voluntary profit-sharing account is extended until December 31, 2020. PwC Société d’Avocats 27
Postponement of employment related deadlines - Urssaf
7. Postponement of employment related deadlines - Urssaf The payment of contributions can be delayed up to three months without penalties and URSSAF inspections and re-assessments are suspended. For employers having 50 or less employees and those who apply a staggered pay approach, regardless of their headcount, the social security payment date is 15th of every month. They can postpone all or part of their payment of employee and employer social charges due on April 15, 2020. For employers having more than 50 employees, the social security payment date is the 5th of every month. They can postpone all or part of their payment of employee and employer social charges due on April 5, 2020. for late payment will be applied. PwC Société d’Avocats 29
7. Postponement of employment related deadlines – Urssaf (continued) Employers may adjust their payment as a function of their needs, i.e. either zero or part of the contributions due. It is nonetheless imperative to declare them and thus to transmit the DSN before Thursday, April 16, 2020 (employers having 50 employees or less) or Monday, April 6, 2020 at 12:00 noon (employers having more than 50 employees). First case - The employer pays its contributions separately from the DSN, by bank transfer: it can adapt the amount of the transfer or make no transfer. Second case - The employer pays its contributions via the DSN: it must transmit the DSN for March 2020 before Thursday, April 16, 2020, or Monday, April 6, 2020 at 12:00 noon and can adjust its SEPA payment within the DSN. PwC Société d’Avocats 30
7. Postponement of employment related deadlines – Urssaf (continued) If the employer does not wish to opt for a postponement of all of the contributions and prefers to pay the employee contributions, it can stagger the payment of the employer contributions. To do this, it must connect with its client space online at urssaf.fr and indicate via the message section "New Message/Declaration/Declare an exceptional situation" ( « Nouveau message » / « Une formalité déclarative » / « Déclarer une situation exceptionnelle »). It is also possible to reach the URSSAF when calling from France on 3957. PwC Société d’Avocats 31
7. Postponement of employment related deadlines - complementary retirement Businesses whose complementary retirement deadlines are set for March 25 , 2020, may benefit from an extension of the deadline for payment, subject to the conditions that will be set by the relevant funds. Businesses should contact their complementary retirement fund to obtain this information. PwC Société d’Avocats 32
International mobility
8. International mobility The Ministry of Health confirmed to us that modifications in the work conditions resulting from Covid-19 (for example, work from home) shall not result in a modification of social security affiliation. In other terms, workers shall remain affiliated with their habitual social security regime even if they are repatriated (temporarily) to France. Certain border workers or their employers should thus not be concerned that the duration of work in France exceeding the threshold of 25% of work in France provided under European regulations result in French social security liability. Note also that the possibility to obtain a work suspension « to attend to young children » (for children under 16) is only available for persons subject to French social security. This measure is thus not applicable to border workers who are not affiliated with the latter regime. PwC Société d’Avocats 34
8. International mobility (continued) The law on « urgent measures to confront the Covid-19 epidemic » of March 23, 2020, provides that « French expatriates who return to France between March 1 and June 1, 2020 who are not actively working shall be affiliated with health and maternity insurance without applying the standard waiting period. The conditions for application of these new rules in are expected to be detailed in a forthcoming decree. PwC Société d’Avocats 35
8. International mobility (continued) With regard to border workers, the Ministry of Labour specified the following in a communiqué of March 19, 2020 : • Those who cannot work from home are authorised to cross the border provided they have an attestation explaining the reason for the travel. • They benefit from the same rights and measures as other employees. • France, Germany, Belgium, Switzerland and Luxembourg have agreed that keeping at home border workers shall not affect their tax residency PwC Société d’Avocats 36
8. International mobility (continued) Due to the Covid -19 crisis, you may have already repatriated to France or another country, or will in the near future, employees that were assigned abroad for a limited or unlimited duration. If repatriated employees maintain, at least initially, their contractual structure (CFE coverage, local pay, suspension of their home contract, for example) and they continue their activity once repatriated (by work from home), the consequences in terms of employment law, immigration, social security, individual tax and payroll for the employee and your business. PwC Société d’Avocats 37
Rapidly evolving circumstances As the situation is evolving rapidly, we recommend consulting the government websites regularly in order to obtain information on additional health and corporate aide that are expected in the days and weeks to come Updated: 29 March 2020 PwC Société d’Avocats 38
Useful Sites http://travail-emploi.gouv.fr/actualites/presse/communiques-de-presse/article/coronavirus-covid-19-et-monde- du-travail https://travail-emploi.gouv.fr/actualites/l-actualite-du-ministere/article/coronavirus-questions-reponses-pour-les- entreprises-et-les-salaries https://www.ameli.fr/haute-garonne/assure/actualites/covid-19-des-arrets-de-travail-simplifies-pour-les-salaries- contraints-de-garder-leurs-enfants https://declare.ameli.fr/ https://activitepartielle.emploi.gouv.fr/aparts/ https://www.interieur.gouv.fr/Actualites/L-actu-du-Ministere/Attestation-de-deplacement-derogatoire-et- justificatif-de-deplacement-professionnel https://www.bpifrance.fr/A-la-une/Actualites/Coronavirus-Bpifrance-active-des-mesures-exceptionnelles-de- soutien-aux-entreprises-49113 PwC Société d’Avocats 39
Regional help centers Auvergne-Rhône-Alpes ara.redressementproductif[@]direccte.gouv.fr 04 72 68 29 69 Bourgogne-Franche-Comté bfc.continuite-eco[@]direccte.gouv.fr 03 80 76 29 38 Bretagne bretag.continuite-eco[@]direccte.gouv.fr 02 99 12 21 44 Centre Val-de-Loire centre.continuite-eco[@]direccte.gouv.fr 02 38 77 69 74 Corse corse.continuite-eco[@]direccte.gouv.fr 04 95 23 90 14 Grand Est ge.pole3E[@]direccte.gouv.fr 03 69 20 99 29 Hauts-de-France hdf.continuite-eco[@]direccte.gouv.fr 03 28 16 46 88 Ile-de-France idf.continuite-eco[@]direccte.gouv.fr 01 70 96 14 15 Normandie norm.continuite-eco[@]direccte.gouv.fr 02 32 76 16 60 Nouvelle-Aquitaine na.gestion-crise[@]direccte.gouv.fr 05 56 99 96 50 Occitanie oc.continuite-eco[@]direccte.gouv.fr 05 62 89 83 72 Pays de la Loire pays-de-la-loire[@]direccte.gouv.fr 02 53 46 79 69 Provence-Alpes-Cote d'Azur paca.continuite-eco[@]direccte.gouv.fr 04 86 67 32 86 Mayotte dominique.grancher[@]dieccte.gouv.fr 02 69 61 93 40 Guadeloupe 971.gestion-crise[@]dieccte.gouv.fr 05 90 80 50 50 Réunion 974.pole3e[@]dieccte.gouv.fr 02 62 940 707 Martinique dd-972.direction[@]dieccte.gouv.fr 05 96 44 20 00 Guyane dd-973.direction[@]dieccte.gouv.fr 05 94 29 53 53 Saint-Pierre et Miquelon janick.cormier[@]cacima.fr 05 08 41 05 33 PwC Société d’Avocats 40
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PwC Société d’Avocats 41Thank you pwc.fr Cette publication diffuse des informations juridiques ou sociales à caractère général. Cette publication ne peut se substituer à des recommandations ou à des conseils de nature juridique ou sociale. Les informations contenues dans cette publication ne constituent en aucune manière un conseil personnalisé susceptible d'engager, à quelque titre que ce soit, la responsabilité des auteurs et / ou de PwC Société d’Avocats. Cette publication est la propriété de PwC Société d'Avocats. Toute reproduction et / ou diffusion, en tout ou partie, par quelque moyen que ce soit, est interdite sans autorisation préalable © 2020 PwC Société d'Avocats est membre de PricewaterhouseCoopers International Ltd, société de droit anglais. PWC désigne la marque sous laquelle les entités membres de PricewaterhouseCoopers International Ltd rendent leurs services professionnels et peut également faire référence à l'une ou plusieurs des entités membres de PricewaterhouseCoopers International Ltd dont chacune est une entité juridique distincte et indépendante. PwC Société d’Avocats
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