[COVID-19] Employment law provisions of Ordinance No. 2020-460 of 22 April 2020 on various measures taken to deal with the Covid-19 epidemic.

Updated information, as of the date of publication of this article

The purpose of this note is to set out the main rules of employment law applicable to commercial companies under private law that are impacted by Ordinance No. 2020-460 of 22 April 2020 on various measures taken to deal with the covid-19 epidemic.

Special provisions apply to employees of the individual employer (compensation for hours worked beyond the legal duration), public law employers or associations and foundations recognised as being in the public interest or of general interest (not subject to the obligation to conclude a profit-sharing agreement in order to benefit from the PEPA scheme). We are at your disposal to explain to you the contents therein, which are not the subject of this note.

1. Change in the social regime for partial activity allowances exceeding the legal thresholds.

The purpose of article 5 of Ordinance No. 2020-460 is to make the sums resulting from the accumulation of the legal partial activity allowance with additional allowances paid by the employer, when these sums exceed 70% of 4.5 times the value of the SMIC, subject to the social security contributions and contributions applicable to income from activity.

When the sum of the legal partial activity allowance and the additional allowance paid by the employer pursuant to a collective agreement or a unilateral decision is greater than 3.15 times the hourly value of the minimum wage, the portion of the additional allowance paid in excess of this amount is subject to the social security contributions and contributions applicable to income from employment under the conditions defined in Articles L. 136-1-1 [CSG] and L. 242-1 [social security contributions] of the Social Security Code.

Thus, the social scheme for the partial activity allowance becomes capped at EUR 31.97 gross per hour off work.

It should be noted that, until now, URSSAF considered that the preferential social regime was also applicable to the supplementary compensation paid by the employer, pursuant to a collective agreement or a unilateral decision.

This derogation shall apply to allowances in respect of periods of activity as of 1^st May 2020.

2. Compensation for hours not worked in excess of the legal or conventional working hours.

Article 7 of Ordinance No. 2020-460 allows for the inclusion in compensable non-working hours of the hours worked beyond the legal or collective working hours, inasmuch as they have been stipulated by a contract or collective bargaining agreement entered into before the date of entry into force of the said Ordinance.

Thus, for employees having entered into, before April 23, 2020, an individual flat-rate agreement in hours within the meaning of Articles L. 3121-56 [flat-rate hours for the week or month] and L. 3121-57 [flat-rate remuneration agreement] of the French Labour Code including overtime, and for employees whose working hours are longer than the legal working hours pursuant to a collective labour agreement or agreement concluded before that same date:

• – The duration stipulated in the contract for individual flat-rate agreements or the collective working time provided for by agreement is taken into account instead of the legal working time for the application of the third paragraph of I of Article L. 5122-1 of the same Code;
• – The overtime provided for in the individual flat-rate agreement in hours or in the collective agreement or agreement referred to in the first subparagraph shall be taken into account in determining the number of hours not worked for which compensation is payable.

The ordinances are generally applicable on the day of their publication, i.e. in this case 23 April 2020. However, there is room for doubt as this provision is presented as an addition to Article 1 of the Ordinance of 27 March 2020, which is applicable as of 12 March 2020. This could therefore suggest that the government intends to give it retroactive effect from the date of application of the Ordinance it amends, namely 12 March 2020.

If the retroactive effect of this measure were to be confirmed, it would be questionable from a legal and practical point of view insofar as this provision is known to employers only after they have applied for an authorisation in which they must declare the “total number of hours requested for the forecast period of partial activity” and it was not legally possible to include hours worked beyond the legal or conventional working time.

It would then be advisable for the government to allow employers to amend the number of compensable hours accordingly, without this being considered a new application. We will keep you informed of any such changes.

3. Supervised possibility to individualize the placement in partial activity

Article 8 of Ordinance No. 2020-460[1] adjusts the conditions for recourse to the partial activity scheme by allowing employees to be placed in partial activity on an individualized basis or according to a non-uniform distribution of hours worked or not worked in the same establishment, department or workshop.

The above-mentioned ordinance of 27 March is thus supplemented by the following flexibility:

Principles of Flexibility

By way of derogation from I of Article L. 5122-1 of the Labour Code, the employer may :

• – Place only part of the employees of a company, establishment, service or workshop, including those in the same occupational category, in a partial activity position;
• – Or apply to these employees a different breakdown of hours worked and not worked, when this individualization is necessary to ensure the maintenance or resumption of activity.

Framework for such flexibility

The employer may implement these special terms and conditions:

• – Either in the case of a company or establishment agreement or, failing that, a branch agreement or convention,
• – Either after a favourable opinion from the social and economic committee or the works council.

It should be noted that the report to the French President, which gives the spirit of the text, mentioned that this flexibility was based “on the basis of a collective agreement, or if such an agreement lacks, after a favourable opinion from the social and economic committee (“SEC”) or the works council. Thus, the SEC route would only be allowed in the absence of a collective agreement”.

However, the text of the Ordinance provides for two options introduced by “either” a collective agreement or “or” a favourable opinion of the SEC, which seems to rule out the need to attempt to reach a collective agreement before deciding to go before the SEC.

Formalism

The agreement or document submitted for the opinion of the Social and Economic Committee or the Works Council shall determine in particular:

1. The skills identified as necessary to maintain or resume the activity of the company, establishment, service or workshop;
2. Objective criteria, related to the positions, functions occupied or professional qualifications and skills, justifying the designation of employees who are retained or placed in partial activity or who are subject to a different distribution of hours worked and not worked;
3. The conditions and the periodicity, which may not be less than three months, according to which the criteria referred to in 2° shall be periodically re-examined in order to take account of changes in the volume and conditions of activity of the company with a view, where appropriate, to amending the said agreement or document;
4. The specific conditions for reconciling professional life and the personal and family life of the relevant employees;
5. The conditions for informing the company’s employees about the application of the agreement throughout its duration.

Duration of application of these adjustments

• – End of its application: 31 December 2020

By virtue of the cross-references in the text, the end date for the application of these provisions is 31 December 2020.

The Ordinance of 22 April 2020 provides that the agreements entered into and the unilateral decisions taken in relation to the abovementioned adjustments shall cease to have effect on the date set pursuant to Article 12 of this Ordinance [that of 27 March 2020], i.e. until a date fixed by decree, but no later than 31 December 2020 (2 ).

• – Start of its application: 23 April 2020? 12 March 2020?

No details are given on the date of entry into force of this provision. Ordinances are generally applicable on the day of their publication, in this case April 23, 2020.

However, as before, there is room for doubt because this provision is presented as an addition to Article 10 of the Ordinance of 27 March 2020, which is applicable as of 12 March 2020.

If this provision were to be applicable as from 12 March 2020, this would allow the social partners to retroactively secure practices implemented before 23 April 2020 which could be considered as a relaxation of the rigid rules of partial activity which were not adapted to the pandemic context.

4. Adjustment of the deadlines for consultation of the SEC on health and safety conditions.

Pursuant to Article L. 2312-8 of the Labour Code, the Social and Economic Committee is consulted on measures concerning employment and working conditions, as well as on any major changes in health and safety conditions that the employer is envisaging, prior to their implementation. In order to promote the rapid resumption of economic activity under conditions that protect employees, it is important that such consultation can be organised under appropriate conditions.

This is why a future decree in the Council of State will, if necessary, define the deadlines by derogation to the applicable conventional stipulations, relatively to:

1. Consulting and informing the SEC on the employer’s decisions that are intended to address the economic, financial and social consequences of the spread of the Covid-19 epidemic;
2. The conduct of expert’s appraisals carried out at the request of the Social and Economic Committee where it has been consulted or informed in the case provided for in 1°.

The Ordinance also specifies that the provisions of Article 2 of the aforementioned Ordinance No. 2020-306 of 25 March 2020 relating to the suspension of certain legal deadlines shall not apply to the deadlines mentioned in this Article. [3]

These provisions will be applicable to periods that begin to run before a date to be set by the said decree and, at the latest, before 31 December 2020.

5. Extension of the deadlines for the investigation of recognition of “AT”s and “MP”s and for medical challenges to the decisions.

Article 14 of Ordinance No. 2020-460 extends the maximum deadlines available to the social security funds for the investigation of claims relating to the recognition of accidents at work and occupational diseases, the use of points or claims under the professional prevention account, as well as medical challenges to their decisions.

When a request for the use of points mentioned in Article L. 4163-7 of the Labour Code [professional prevention account] or a claim mentioned in Article L. 4163-18 [dispute related to a disagreement with his employer on the effectiveness or extent of his exposure to occupational risk factors] of the same code is being processed as at 12 March 2020, as the case may be, by the employer or by the management body mentioned in Article L. 4163-14 of the same code [CPAM], or when such a request or claim is sent between 12 March 2020 and a date set by order of the Minister of Labour and which cannot exceed the date of cessation of the state of health emergency declared by Article 4 of the above-mentioned law of 23 March 2020 [24 May 2020], if necessary extended under the conditions laid down in that article, the deadlines within which the employer or the managing body must decide on these requests and claims are extended by three months.

The provisions of the aforementioned Ordinance No. 2020-306 of 25 March 2020 do not apply to the deadlines extended pursuant to this Article 14 (see previous point).

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1] It should be noted that Article 8 of this Ordinance modifies (in a non-significant way) Article 6 of Ordinance No. 2020-346 of 27 March 2020: “The partial activity is binding on the protected employee within the meaning of the provisions of Book IV of Part II of the Labour Code, without the employer’s agreement, as long as it affects, to the same extent, all employees of the company, establishment, service or workshop to which the person concerned is assigned or attached. »

2] Decree No. 2020-435 of 16 April 2020 on emergency measures for partial activity, while specifying that it is issued pursuant to Article 12 of Ordinance No. 2020-346 of 27 March 2020, states that “the provisions of this decree are applicable to claims for compensation for partial activity addressed to the Services and Payment Agency pursuant to Article R. 5122-5 of the French Labour Code in respect of the partial activity placement of employees since March 12, 2020 due to the Covid-19 epidemic until 31 December 2020“.

3] Any act, appeal, legal action, formality, registration, declaration, notification or publication prescribed by law or regulation which, failing so, shall entail nullity, sanction, lapse, foreclosure, prescription, unenforceability, inadmissibility, lapse, automatic withdrawal, application of a special regime, nullity or forfeiture of any right whatsoever and which should have been accomplished during the period mentioned in Article 1 shall be deemed to have been done in time if it has been done within a period which may not exceed, as from the end of that period, the time legally prescribed for taking action, within a limit of two months.

The same applies to any payment prescribed by law or regulation for the acquisition or retention of a right. This Article shall not apply to the periods of reflection, withdrawal or renunciation provided for by law or regulation, nor to the periods provided for the reimbursement of sums of money in the event of the exercise of these rights.