Subsequent to the announcement of the second lockdown during the presidential address of 28 October 2020, the protocol was updated on 29 October 2020, and then on 13 November 2020.

The purpose of the present article is to provide an overview of the modifications made through these two updates.

100% TELEWORK, WHERE POSSIBLE

Telework is now "the rule", in such a way that:

• In principle, telework must be implemented at a rate of 100% for all employees whose job positions allow it, i.e. for employees "who can perform all their duties remotely";
   
• If teleworks proves partially or entirely impossible (given the employee's job position or the performance of duties requiring the employee's physical presence on the work premises), the employer must at the very least:
  • set up a work organization that makes it possible to limit the number of home-workplace commutes;
     
  • adjust the time of presence on the work premises for the performance of duties that can be carried out from home, so as to limit physical contact among employees;
     
  • spread out arrival and departure times in order to limit a large influx of employees during peak hours.

POSSIBILITY OF ORGANIZING SCREENING TESTS

In compliance with regulatory conditions, employers can offer screening tests to any and all voluntary employees. This screening concerns "authorized rapid testing", i.e. the so-called "antigen" tests.

These screening actions must be entirely financed by the employer and carried out in conditions that guarantee the proper execution thereof together with the strict respect of medical confidentiality, thus implying that the test results must not be communicated by the employer.

On the other hand, the protocol recalls that the implementation of serology testing campaigns by companies is currently not an option.

EMPLOYEE INFORMATION ON "TOUSANTICOVID" APPLICATION

The updated protocol includes another new feature: the employer must inform the employees of the existence of the "TousAntiCovid" application and of the relevance of its activation during working hours.

PREFERRED ORGANIZATION OF AUDIO AND VIDEO CONFERENCING AND SUSPENSION OF SOCIAL EVENTS

Audio and video conferencing must constitute the rule while in-person meetings must remain an exception.

Social events involving the presence of employees in the workplace are "suspended".

SPECIAL ATTENTION TO "VULNERABLE INDIVIDUALS"

Prior to the 13 November 2020 update, the protocol indicated that, within the scope of the terms and conditions of implementation of the protection measures within the company, the employer must notably pay special attention to "workers at risk of contracting serious forms of Covid-19".

The updated protocol replaces this notion, indicating that the employer must pay special attention to "vulnerable individuals identified in Decree no. 2020-1365 of 10 November 2020 as being at risk of contracting serious forms of Covid-19", and expressly refers to the aforesaid decree, which provides the precise list of individuals considered "vulnerable".

FURTHER DETAILS ON THE NORMATIVE VALUE OF THE PROTOCOL

To date, no sanction exists in the event of the employer's non-compliance with the recommendations of the national health protocol, given that the protocol (i) only serves as a recommendation tool and (ii) does not ensue from a law or decree.

This lack of normative value was confirmed by:

• the Director of the National Institute of Labor, Employment and Professional Training (Institut National du Travail de l'Emploi et de la Formation Professionnelle - INTEFP), according to whom:
   
• "The deconfinement protocol completes or rather introduces the guidelines provided by the Ministry of Labor and the trades guidebooks published by the trade organizations in order to help employees and employers within the scope of the implementation of the protection measures against Covid-19 on work premises. Strictly speaking, these texts have no normative value, as they are neither decrees nor orders. However, an employer that implements the measures recommended in the trades guidebooks, prepared by occupational health and safety experts, maximizes its chances of implementing the expected measures in order to satisfy the general prevention principles of the French Labor Code and its prevention obligations" (the deconfinement protocol provides principles and markers - Hervé Lanouzière, INTEFP Director – Semaine Sociale Lamy no. 1907, 11 May 2020);
   
• the Directorate-General of Labor (Direction Générale du Travail – DGT), which, in a memorandum published on 14 September 2020 – aimed at specifying the Labor Inspectorate's means of action to enforce compliance with the protocol – indicated that while non-compliance with the protocol cannot, as such, be directly sanctioned by the Labor Inspectorate, the employer's compliance with these recommendations will have an impact on whether or not it complied with its safety obligation;
   
• the Administrative Supreme Court (Conseil d'État), which very recently specified that the protocol is only meant to serve as guidelines to help employers fulfill their safety obligation, as worded hereafter: "The protocol, the suspension of which has been requested, constitutes a set of recommendations for the material application of the employer's safety obligation" (Conseil d'État, 19 October 2020, no. 444809).

This is also what expressly emerges from the latest circular sent out by the Directorate-General of Labor on 3 November 2020 "relative to the guidelines and the terms and conditions for labor inspection within the scope of the lockdown entered into force on 30 October 2020", which:

• recalls that "the provisions of the protocol constitutes operational recommendations adapted to the pandemic situation, as recalled by the urgent applications judge of the Administrative Supreme Court on 19 October";
   
• invites the Labor Inspectorate services to "assist companies and their employees with the adoption of these general recommendations, notably by making sure that decisions are made taking into account the characteristics of the activities, the external health context and the internal human context, and through a constant dialogue with employees and their representatives", and in this way check that the employer resorts to telework based on actual work situations and on the activities carried out;
   
• specifies that "like all inspections, in confirmed situations of risk and non-compliance with the general prevention principles, the inspection agent shall apply the most appropriate legal tool and where necessary, a formal notice from the Direccte (Direction Régionale des Entreprises, de la Concurrence, de la Consommation, du Travail et de l'Emploi - Regional Directorate for Companies, Fair Trading, Consumer Affairs, Labor and Employment) can be notified to the employer in the inspection report".

Thus, while lacking normative value in the strict sense of the term, the protocol is designed to serve as a "reading grid" for labor inspectors and possibly judges, in case of litigation. This is why compliance with the protocol's recommendations is strongly recommended in order to avoid any risk for the employer of being charged with failing to comply with its safety obligation, as set forth in Articles L.4121-1 et seq. of the French Labor Code.

♦ ♦ ♦

Gide's Employment practice group is available to answer any questions you may have in this respect. You may also get in touch with your usual contact at the firm.

This legal update is not intended to be and should not be construed as providing legal advice. The addressee is solely liable for any use of the information contained herein and the Law Firm shall not be held responsible for any damages, direct, indirect or otherwise, arising from the use of the information by the addressee.

► Please find here all contributions by our lawyers to help you understand the measures taken following the extension of the state of public health emergency, and their impact.