While most companies in France (with the exception of cafés and restaurants, sports halls, theatres, museums, and companies whose activities allow teleworking) will be able to resume their activity from 11 May, employers must now take health and safety measures to ensure the protection of their employees and limit the risks of litigation and criminal proceedings.
The French Labor Code obliges employers to ensure the safety and protection of the physical and mental health of their workers. This obligation is almost an “obligation of result.” To that end, employers must take the following necessary measures:
Employers must also ensure that these measures are adapted to take account of changing circumstances and aim at improving existing situations. Article L. 4121-1 of the Labor Code.
Moreover, an employer may be held criminally liable for the mere fact the safety and protection of the physical and mental health of workers have not been provided, in addition to the possibility for employees to exercise their right of withdrawal. However, if the employer proves that it has implemented the necessary measures, it may limit its liability.
This criminal liability may apply, apart from any accident at work (or occupational disease) or even any damage.
In addition, employers must transcribe and update in a single document (document unique) the results of the assessment of the occupational risks identified in each work unit of the enterprise or establishment. This obligation applies to all employers regardless of the size of the workforce and the activity of the undertaking. Failure to complete or update the single document is a criminal offence.
The single document is drawn up and updated by the employer, but it is a collective effort, involving in particular the staff representative bodies, the occupational physician, and, possibly, external prevention services.
The Labor Code specifies that the inventory of identified risks must be made in "each work unit of the enterprise or establishment." The notion of work unit must be understood in a broad sense, in order to cover the very diverse situations of work organizations.
Preventive actions must be planned with a multidisciplinary approach, requiring medical, technical, and organizational skills.
The Labor Code provides for three ways of updating the single document:
The single document must be made available to employees, employee representatives, and the occupational physician. In addition, at their request, the single document must be provided to the labor inspector, who can issue a report against the employer for failure to transcribe the results of the risk assessment into a single document or for failure to keep it up to date; and to prevention officers specific to certain activities (e.g., building, public works).
With regard to these requirements, employers must, before the reopening of businesses as of May 11, do the following:
It should be noted that the Ministry of Labor has asked the labor inspectorates to be very vigilant to ensure that the return to work takes place in the safest possible conditions.
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