COVID-19 and French Employment law - Update on employees' right of withdrawal (droit de retrait)
2) The specifics of the right of withdrawal due to the coronavirus
As of March 12th, 2020, the solidarity union denounced the various communications from the government because of a very anxiety-provoking nature, and at the same time referring coronavirus protection to the individual responsibilities of employees via barrier gestures.
In fact, from the first week of confinement, employees from different sectors invoked their withdrawal rights.
As an example, on March 17, 2020, the Postmen of Grenoble and Marseilles asserted their rights of withdrawal considering that the measures taken were insufficient to protect their health and that of their customers, denouncing in particular an organization in the sorting centers which did not allow the minimum distance between people of at least 1 meter.
The following day, Bruno Lemaire, Minister of the Economy reacted by urging all employees of the activities essential to the functioning of the company to go to work.
In the same direction, Emmanuel Macron declared on March 19: "We must continue to produce and make the country turn"; the Elysee considering that the confinement was not contradictory with the continuation of the work.
This, while at the same time, the medical community demanded the strictest containment possible in order to protect everyone and effectively fight against the spread of the virus.
In this slightly schizophrenic context, can the risk of infection with covid 19 justify the exercise of the right of withdrawal?
2.1) The government's position on the right of withdrawal (Droit de retrait)
According to the Ministry of Labor, once all of the government's health recommendations have been implemented by the employer, the right of withdrawal would not be justified.
These health recommendations issued by the government are as follows (Q&A on Covid19):
a) Regarding general health recommendations
It is necessary:
- Set up telework as much as possible and avoid professional travel;
- Ensure compliance by employees with barrier gestures (frequent hand cleaning and compliance with a minimum distance of one meter, cough or sneeze into the elbow, use single tissues);
- Arrange workstations to allow a distance of one meter between employees;
- Reorganize the concerned workstation (s) after risk analysis, giving priority to teleworking;
- If teleworking is impossible, ensure that employees avoid places where fragile people are found, any outing or meeting that is not essential (conferences, meetings, etc.), close contacts (canteen, elevators, etc.).
b) Regarding employees assigned to a work station in contact with the public
“If the contacts are brief, the“ barrier ”measures (mesures barriers) , in particular those relating to the limitation of contacts and very regular hand washing are sufficient.
If the contacts are prolonged and close, it is necessary to supplement the “barrier” measures by maintaining a zone of distance (mesure de distanciation sociale) of one meter between your employee and the customers, by cleaning the surfaces with a detergent product, as well only by regular and soaped hand washing. "
c) The measures to be taken if one of the employees is contaminated
- Work spaces occupied by an employee who has been infected must be cleaned according to a specific protocol:
- “equipment for people in charge of cleaning floors and surfaces with the wearing of a single-use gown, household gloves (the wearing of a respiratory protection mask is not necessary due to the absence of aerosolization by soils and surfaces);
- soil maintenance: favor a wet washing-disinfection strategy so that:
o floors and surfaces are cleaned with a disposable washing strip impregnated with a detergent;
o the floors and surfaces are then rinsed with potable water with another disposable washing strip;
o sufficient drying time for these floors and surfaces is left;
o floors and surfaces must be disinfected with bleach diluted with a single-use washing strip different from the previous two. "
- The employer must inform other employees who may have been in contact with an infected employee
Finally, there is the obligation of the employer to update the Single Risk Assessment Document.
Also, according to the government, the right of withdrawal would not be acceptable on the sole assumption that the employer did not comply with these recommendations.
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Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
Mathilde MERMET-GUYENNET avocat
CHHUM AVOCATS (Paris, Nantes, Lille)
.Paris: 4 rue Bayard 75008 Paris tel: 0142560300
.Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644
.Lille: 25, rue Gounod 59000 Lille tel: 0320135083