The employee must immediately alert the employer of this situation (the burden of proof is on him/her) and the information must be concurrent with the exercise of the right.
Information current as of the date of publication of this article.
What is the right of withdrawal? What is its legal basis?
This right, established by the first paragraph of Article L. 4131-1 of the French Labour Code, consists of the possibility offered to any agent or employee to leave his or her post: if he or she has reasonable grounds for believing that he or she is exposed to a serious and imminent danger to his or her life or health, or if he or she notices a defect in the protection systems.
The basis of this right also rests on article L 4122-1 of the French Labor Code, which requires employees to take care, according to their training and possibilities, of their health and safety and that of their co-workers.
In principle, an employee should not have the opportunity to spontaneously exercise this right of withdrawal insofar as, in application of Articles L 4121-1 and L 4132-5 of the French Labor Code, if he/she has reason to believe that there is a serious and imminent danger for the company’s employees, the employer must take all the necessary measures to remedy the situation, put them in safety and remove them from the premises (information, training, provision of individual and collective safety equipment, etc.).
Under what conditions can an employee exposed to the risk of COVID-19 contamination exercise his/her right of withdrawal?
An employee may therefore withdraw from a work situation which he/she has reasonable grounds to believe presents a serious and imminent danger to his/her health, or in the event of a defect in the protection system (e.g. a large influx of contaminated persons without any measures to isolate or safeguard personnel).
This motive cannot therefore be only professional but also be health-related (Cass. Soc. September 26, 1990).
The employee must immediately alert the employer of this situation (the burden of proof is on him/her) and the information must be concurrent with the exercise of the right.
However, the information does not necessarily have to be in writing (Cass. Soc. May 28, 2008, JCP S 2008 1506 - note BAREGE and BOSSU).
This is an individual and subjective right. It can be exercised independently of the intervention of staff representatives and therefore of the CSE (ex-Works’ Council) (Cass. Soc. May 10, 2001).
The danger does not have to be external (Cass. Soc. March 20, 1996, P 93-40111).
The analysis of the appropriateness of the exercise of this right and of the indications suggesting that the continued employment presents a serious and imminent danger, is the responsibility of the trial judge, who verifies the reasonableness of the motive in a sovereign manner. (Cass. Soc. April 23, 2003, P 01-44806)
- However, the first to assess its legitimacy, subject to the a posteriori control of the Courts, is the employer, who may or may not deprive the employee of any remuneration because, as a matter of principle, the counterpart of the salary is work (Cass. Soc. February 11, 1971 and June 8, 2005) and may consider a disciplinary sanction, or even dismissal for misconduct against the absent employee (Cass. Soc. October 17, 1989).
In the event of disagreement between a member of the CSE and the employer on the reality of the danger or the way to stop it, the entire CSE must be convened (article L4132-3 of the French Labor Code). If the disagreement persists on the measures to be taken, the labor inspector shall intervene (article L 4132-4 of the French Labor Code).
According to our analysis, this cannot be the case when it comes to applying the protective measures advocated by the Government.
The right of withdrawal must be exercised in such a way that it does not create a new situation of serious and imminent risk for others (Article L. 4132-1 of the French Labor Code). This right of withdrawal cannot therefore be exercised in principle when the risk concerns persons outside the company, such as passengers (circular DRT No. 93/15 of March 26, 1993).
Moreover, this right of withdrawal cannot be exercised with payment of salary by an employee already on sick leave (Cass. Soc. October 9, 2013).
In a health crisis situation, the possibility of exercising the right of withdrawal is therefore more severely restricted, provided, however, that the employer has already taken the necessary preventive and protective measures in accordance with the official government recommendations (www.gouvernement.fr/info-coronavirus).
What recourse does the employer have in the event of abuse in the exercise of this right of withdrawal?
(a) If the use of the right appears legitimate due to the absence or inadequacy of preventive measures taken by the company:
The rule is that no sanctions, dismissal or salary deductions may be applied as a result of the legitimate exercise of this right of withdrawal (Article L 4131-3 of the French Labor Code).
The employee may refer the matter to the interim relief judge to obtain payment of at least part of his remuneration, provided that this right is legitimately applied.
Dismissal based even partially on the legitimate exercise of this right is considered null and void, with payment of termination indemnities and at least 6 months' gross salary (Cass. Soc. November 25, 2015).
Similarly, the employer is prohibited from asking an employee who has exercised his/her right of withdrawal to resume his/her activity in a work situation where a danger persists that is genuinely and validly considered as serious and imminent.
(b) If the use of the right is manifestly illegitimate due to the practical implementation of preventive and protective measures by the company as advocated by the Government:
Conversely, if the exercise of that right is manifestly abusive, a deduction from wages for non-performance of the contract of employment may be validly made:
- In this matter, the employer can take justice into his own hands according to the constant jurisprudence of the Court of Cassation, without having to refer the matter to the Labor Court, even if the employee remains at the employer’s disposal on the company's premises (Cass. Soc. November 25, 2008).
The unfounded exercise of this right does not in itself characterize the existence of serious misconduct but may constitute grounds for disciplinary action or even a real and serious cause for dismissal (Cass. Soc. December 6, 1990 and Cass. Soc. October 17, 1989), subject to the judges' discretion.
- If the employer spontaneously pays the employee's salary despite the latter’s absence, this would tend to confirm the validity of the employee's approach and unjustified exposure to a risk to his/her health, which would likely emphasize the employer’s acknowledging a possible fault on his/her part that could undermine the latter’s obligation of security of result.
It is therefore always preferable either to contest a priori the exercise of this right, or to react immediately by modifying the working conditions and the Single Risk Assessment Document, so as to encourage the employee to return to work normally.
Moreover, the Inexcusable Fault of the employer provided for by Article L452-1 of the Social Security Code is automatically recognized in the event of an industrial accident or an occupational disease related to the risk reported to the employer (Article L4131-4 of the French Labor Code).
Contamination leading to serious illness or death could therefore lead to the automatic recognition of this inexcusable fault.
The government's website presents the measures taken on the national territory to deal with the Coronavirus crisis, as well as a series of tips and frequently asked questions on the epidemic to enable employers to demonstrate the actions actually taken in favor of the safety of employees and to make it more questionable and inappropriate for an employee to exercise the right of withdrawal.
There is also a toll-free hotline from 9:00 am to 7:00 pm, seven days a week, to answer your questions about the coronavirus: 0 800 130 000.
