The COVID-19 pandemic has been the main focus of French employment law these past months, with a constant stream of measures to help businesses and their employees ride out the resulting economic storm. These fast-paced amendments generated significant uncertainty for companies operating in an already challenging environment.
THE MAIN ISSUE: MAINTAINING EMPLOYMENT
In March 2020, at the occasion of the first lockdown, many French companies discovered the national furlough system, referred to as “partial activity”. It allows employers to suspend their staff’s employment contracts for a given proportion and duration, in consideration of which employees are paid a partial activity allowance. In return, companies receive indemnification from the State for a percentage of the amounts paid to their employees.
A long-term partial activity scheme allows companies to keep receiving partial activity indemnification for a total duration of 24 months, consecutive or not, over a reference period of 36 months. Its benefit is subject to businesses subscribing specific undertakings to maintain employment.
Overall, partial activity has been a powerful tool to limit collective redundancies.
Other measures to maintain employment despite the unfavourable economic environment were taken. From July 1, 2020 to February 28, 2021, companies entering into apprenticeships received exceptional subsidies. More recently, the French Ministry of Labour initiated a “collective transition” scheme, to support companies and employees dealing with long-term economic transformations in their business area. This includes increased training offers and subsidies for staff wishing to learn new skills.
THE UNDERLYING ISSUE: WORKERS’ MENTAL AND PHYSICAL HEALTH IN CONJUNCTION WITH WORK FROM HOME
Beyond these measures, the extent of which vary according to employee categories and activity sectors, the COVID-19 pandemic has shed light on two matters of utmost importance: health and safety in the workplace and work from home. These topics had already made their way to the top of HR concerns with the arrival of younger generations on the job market, who seek more flexibility in their work and have convinced businesses to pay more attention to their staff’s physical and mental health. The COVID-19 pandemic accelerated the paradigm shift.
Firstly, health and safety matters were obviously of great concern to employers, which had to organize their staff’s return to the workplace after the first lockdown while ensuring that they duly complied with the applicable rules. Employers are bound towards their staff by a general safety obligation and the requirement to protect their health. In this respect, the Ministry of Labour issued a number of recommendations on how to effectively prevent workers from being contaminated by the COVID-19 virus with measures guaranteeing compliance with social distancing rules and the supply of personal protective equipment. Beyond these practicalities, the pandemic also resulted in businesses taking action to protect their staff’s mental health, which has proven to be a significant issue. The first lockdown and the now almost total ban on in-person meetings have significantly reduced interactions between colleagues and, perhaps surprisingly, millennials have particularly suffered from the absence of bonding opportunities with their peers.
This situation drove trade unions and employer organizations to negotiate a national inter-professional agreement on health and safety in the workplace, executed on December 9, 2020. The main purpose of this agreement is the intensification of prevention measures. It promotes increased training in health and safety matters, with the creation of a “prevention passport” for employees, as well as the prevention of occupational exclusion to avoid medical unfitness and new missions for intercompany worker safety services. A draft bill is currently under review by the French Parliament to incorporate the agreement’s provisions into law.
Secondly, work from home was off to a rocky start for most businesses at the occasion of the first lockdown. Previously, French employers were somewhat wary of allowing their staff to work from home on a regular basis, mainly for cultural reasons. It is estimated that only approximately half of the workers who worked from home in the midst of the COVID-19 pandemic had previous experience in this type of work organization. Work from home company agreements were not very popular prior to 2020. Nonetheless, the French labour code already contained provisions that allowed employers to impose work from home for the purposes of business continuity and to guarantee employees’ safety in case of exceptional circumstances, thus providing minimal legal basis.
Approximately 25% of the French working population was working from home during the first lockdown. While some workers fully enjoyed this experience and new sense of freedom in the organization of their time, others suffered from a lack of engagement and supervising that was difficult to manage for employers. Albeit the extreme conditions under which this global experience of work from home occurred, it was an opportunity to fully apprehend the challenges posed by this working organization. As a result, a national inter-professional agreement on work from home was executed on November 26, 2020. It remains to be extended, such that its application is not yet mandatory for all companies having activities falling within the scope of the signatory employer organizations. While it does not provide for anything that significantly diverges from the existing legal framework and 2005 national inter-professional agreement on the subject, it mostly aims at determining good practice with respect to workers’ health and safety, according to what was experienced during the first lockdown.
It is very much likely that even when we recover a “normal” way of life after the COVID-19 pandemic, French companies will continue to pay accrued attention to health and safety matters and work from home. In most fields, people have seen in the pandemic a sign to aim for a more sustainable organization and French HR teams are naturally attentive to their staff’s desire for a healthier work environment.
Well aware of this trend, the French lawmaker also proposed supplemental measures in favour of workers’ health. As from July 1, 2021, the term of paternal leave will be doubled from 14 to 28 days. This legal amendment is aimed at increasing equality between parents.
A FORESEEABLE RETURN TO A NORMAL AGENDA?
Finally, in 2021, the French government intends to steer discussions back towards the major labour reforms that had been suspended due to the COVID-19 pandemic. That is notably the case of the universal retirement system, for which a bill was passed by the French national assembly in early 2020 but remains to be officially adopted. In addition, after several postponements, the unemployment benefits reform resulting from the “Loi sur la liberté de choisir son avenir professionnel” adopted in 2018 should ultimately enter into force on July 1, 2021.
Nonetheless, no one can predict how the COVID-19 pandemic will evolve and it is unfortunately likely that French employment law matters will remain heavily focused on emergency measures to tackle the challenges posed by these exceptional circumstances. Let us hope that 2021 will mark the end of a period during which the French lawmaker has been reduced to adopting one-off temporary rules to address contingencies and that the lessons learned from the health crisis will lead to the adoption of bills dealing with the lasting economic and social effects of the COVID-19 pandemic. Will we see a new post-crisis social model?