Coronavirus and employer liability | the limits in France

Does the employer have to take action though it is an external epidemic?

Pursuant to its duty of care, which is an increased obligation of means, the employer must protect the physical and mental health of its employees in the professional context, including when the cause of the risk is external, such as an epidemic.

Even though the employer is not responsible for the occurrence of the epidemic, it must take the necessary preventive or even protective measures to reduce the risk of exposure of the employee in the workplace.

What does this duty of care mean?

The measures taken within the framework of the duty of care must be adapted and proportionate to the company's activity and the degree of exposure of employees.

There is no precise list of measures to take. However, the measures, which may be collective or individual, must include information and training actions for employees, as well as concrete preventive actions.

With regard to Covid-19, information and preventive measures mainly rely on the instructions from the public authorities and, if the latter were to recommend protection tools, the employer would have to provide them to the employees and bear their cost.

As this is an evolving epidemic and the health authorities have indicated that the virus spreads orally by air, the measures to take are different depending on the company's activity and the employees contact with the public. For example, the response will not be the same in a transport company, a health facility, or a service activity in offices.

In any case, the employer must (i) limit the risk of exposure for employees in the workplace and (ii) manage the situation of an employee who has been in contact with an infected person or who is returning from a risk area.

In order to respond appropriately, the employer must adopt an approach similar to that used to draft the occupational risk assessment document (“document unique d’évaluation des risques professionnels”):

• Assessment and analysis of practices in the company and therefore of the conditions of exposure (workplace, scheduled business trips, contact with third parties…).
• Grading of levels of exposure and therefore of risk
• Planning of actions to implement

The occupational doctor should take part in this process.

Finally, the employer will remind each employee that he or she must make every effort to protect his or her health and safety, as well as others, including colleagues. 

Work arrangements

When an employee is likely to have been exposed to the virus (return from a risk area or contact with an infected person), contact with other employees in the company should be limited.

To this end, if the activity and organisation of the company allow it, home working is a useful preventive measure, at least during the incubation period of the disease, while reducing absenteeism.

While in principle home working requires prior collective agreement or unilateral charter of the employer, it is possible to dictate it to employees in the context of an epidemic, in order to allow the continuity of the activity and to ensure the protection of employees.

In this case, the employer must provide the employee with the necessary equipment and information on home working and ensure that data exchanges are secure.

Where home working is not possible, the employer may require the employee at risk to stay at home in "quarantine" in order to protect the health of other employees.

Among other working arrangements, companies should also consider participation to professional events (such as trade fairs or conferences) or restricted access to premises to third parties to limit the risk of exposure.

Should the employer pay employees in 'quarantine'?

The question of the employee's remuneration during this period is different depending on whether the employee is on sick leave.

The public authorities have already stated that employees who have to quarantine or have to look after a child for this reason may be on sick leave and thus are eligible to national health insurance cover (with daily allowance (IJSS)). In this case, the employer will only have to pay a supplement to the IJSS and not the entire salary.

On the other hand, in the absence of sick leave, the employer who forces the isolation measure will have to pay the employee in full during this period. The employee may use paid days (if willing).

Can the employer require employees to take their temperature and refuse access to the premises to an employee with a fever?

Taking the employee's temperature is likely to be a medical act and the result is health data protected by medical privilege.

Consequently, systematic temperature for measure all staff is impossible, so is the related data storage.

The French Data Protection Authority (CNIL) considers that this measure excessively invades privacy. Health authorities also seem to express reservations about the benefit of this measure, particularly during the incubation period of the disease.

However, the employer may recommend that employees take their temperature as a preventive measure and may even require an employee to leave the premises if he or she shows symptoms or returns from a risk area, without even taking his or her temperature.

Can the employer require employees to declare a medical condition that identifies them as at risk or vulnerable?

Collection and storage of personal data must always be proportionate to the purpose sought, which, in the case at hand, is the protection of employees' health.

Thus, if the employer can ask an employee if he or she shows certain symptoms or if he or she returns from a "risk" area in order to take the necessary measures, it will not be able, according to the recommendations of the CNIL, to keep this information for more than 30 days (a “quarantine” generally lasts 14 days).

After this period, the employer must delete the data file permanently.

It also seems possible to ask employees if they have a pathology identifying them as particularly vulnerable to the epidemic in order to take special protective measures if necessary.

However, it is not possible to require employees to declare a pathology, nor to question them about the nature of this pathology without infringing on their right to privacy. 

Can an employee withdraw from work because of the Covid-19 epidemic?

Employees can withdraw from work if they have reasonable and legitimate grounds to believe the situation is such that there is a serious and imminent danger to their life or health.

In the context of the Covid-19, the use of the right of withdrawal (“droit de retrait”) does not seem reasonable if the employer demonstrates that it has taken all the necessary preventive and protective measures based on official recommendations.

Covid-19 infection: a work-related accident?

A work-related accident (“accident du travail”) is an accident that occurs by or in the course of work, regardless of the cause, if the event causing the accident is sudden and results from an event or series of events timed with certainty.

A now global widespread epidemic with a virus that spreads by air with an incubation period of several days does not meet the suddenness and timing criteria. Indeed, the employee will not be able to establish with certainty that he or she has been in contact with the virus exclusively within the company.

For these reasons, it cannot, in our opinion, be a work-related accident (nor an occupational disease (“maladie professionelle”) because it is not in the list of occupational diseases).

Osborne Clarke's Employment Law team is at your disposal for any further information you may require.