Covid-19: latest news in labor law to face the crisis

 

The legislative and regulatory arsenal intended to deal with the Covid-19 epidemic has been further strengthened. Presentation of the latest texts in labor law.

 

1. Ordinance No. 2020-560 of May 13, 2020 setting the deadlines applicable to various procedures during the health emergency period

Ordinance n ° 2020-306 of March 25, 2020, amended by ordinance n ° 2020-427 of April 15, 2020, established a postponement system for various deadlines and due dates, and had defined for this a " legally protected period 'which ran from March 12, 2020 until the expiration of a period of one month after the end of the state of health emergency, which was initially to end on May 23, 2020 (the period legally protected was thus to end on the following June 23).

Since then, the state of health emergency has been extended until July 10, 2020 included, by the Law 2020-546 May 11, 2020.

Taking into account, at the same time, the resumption of economic activity, the public authorities considered that the sliding reference constituted by the end of the state of health emergency was no longer relevant and that it was advisable to substitute a fixed date.

Thus, the ordinance of May 13, 2020 sets June 23, 2020 at midnight as the end date of the legally protected period. The date fixed by the first order is therefore maintained but will no longer change.

It should be remembered that under article 2 of the aforementioned ordinance of 25 March 2020 as amended, with some exceptions, "Any act, appeal, legal action, formality, registration, declaration, notification or publication prescribed by law or the regulations on pain of nullity, sanction, lapse, foreclosure, prescription, unenforceability, inadmissibility, expiry, automatic withdrawal, application of a special regime, void or forfeiture of any right whatsoever and which should have been completed during the period mentioned in Article 1 ”, that is to say between March 12 and June 23, 2020, “Will be deemed to have been done on time if it has been done within a period which cannot exceed, from the end of this period, the period legally allowed for action, within the limit of two months”.

In addition, the ordinance of May 13, 2020 neutralizes the impact of the extension of the state of health emergency on the suspension or postponement of professional elections in companies, as they had been fixed by ordinance no. ° 2020-389 of April 1, 2020. From now on, electoral processes that had been suspended will have to resume on September 1, 2020 at the latest and, for those that had not started on March 12, 2020, they must be started between May 24 and August 31, 2020.

However, Ordinance No. 2020-737 of June 17, 2020, supplementing the same ordinance of April 1, offers employers the possibility ofanticipate the resumption of electoral processes, currently suspended until August 31, 2020 inclusive, in compliance with health recommendations intended to protect human health. He can then set the date between July 3 and August 31, 2020 (by informing the employees, the trade unions and, when it has been referred to the administrative authority, at least fifteen days before the date set for the reprise). Otherwise, the process will resume on September 1, 2020.

 

2. Law n ° 2020-734 of June 17, 2020 on various provisions related to the health crisis, other urgent measures as well as the withdrawal of the United Kingdom from the European Union

Among the various provisions provided for by this law, the main ones concerning labor law are as follows:

• The Government is authorized to take by prescriptions the measures allowing, if necessary from 1 June 2020 and for a period not exceeding 6 months from the end of the state of health emergency, theadaptation of the provisions relating to partial activity in order to limit the ends and terminations of employment contracts, to mitigate the effects of the decline in activity, to promote and support the resumption of activity, in particular by allowing employees to demonstrate their contractual relations by all means written and by adapting the rules to the characteristics of companies according to the economic impact of the health crisis on them, their sector of activity or the categories of employees concerned;
• From March 12, 2020 and for a period not exceeding 6 months from the end of the state of health emergency, may be concluded or renewed for a total period of 36 months, under certain conditions, Fixed-term contract and mission contracts (interim), when they tend tooccupational integration ;
• Until December 31, 2020, a company or branch agreement may authorize the employer to impose on employees placed in partial activity benefiting from full maintenance of their remuneration on the basis of contractual stipulations to assign conventional days of rest or part of their annual leave exceeding 24 working days (in the case of days acquired and not taken), within the limit of 5 days per employee, to a solidarity fund to be monetized in order to compensate all or part of the reduction in remuneration suffered, where applicable, by other employees placed in partial employment. Such an agreement may also authorize the monetization of the same days of rest or leave, at the request of an employee placed in partial employment, in order to compensate for all or part of the reduction in remuneration he has suffered, where applicable;
• Exceptionally, are taken into consideration for the opening of pension rights (for retirement pensions taking effect from March 12, 2020), the periods between March 1, 2020 and December 31, 2020 during which the insured receives partial activity compensation;
• Employees and, where applicable, their beneficiaries, continue to benefit from the collective guarantees of complementary social protection when they are placed in a position of partial activity, independently of the contrary stipulations of the act establishing these guarantees;
• As an exception and derogatory, an old-age pension can be fully combined with a professional activity carried out in a health establishment or a medico-social establishment during the months included in the period of health emergency;
• By derogation, the employer of a company with less than 11 employees without a union delegate or elected member of the CSE may set up, by unilateral decision, a incentive plan for a period of between one and three years, provided that no profit-sharing agreement is applicable or has not been concluded in the company for at least 5 years;
• In order to deal with the economic, financial and social consequences of the Covid-19 epidemic, until December 31, 2020 and by way of derogation, a collective company agreement may (i) set the maximum number of possible renewals for a CDD (except for integration contracts), without this number having the purpose or effect of permanently filling a job linked to the normal and permanent activity of the company, and (ii) set the methods of calculating the waiting period between two fixed-term contracts, or even provide for the cases in which this waiting period is not applicable. Such an agreement may provide for the same arrangements with regard to assignment contracts (interim), as well as authorize the use of temporary employees in cases not provided for by law ;
• Job seekers who exhaust their right to unemployment benefits from 1 March 2020 exceptionally benefit from an extension, fixed by ministerial decree and no later than 31 May 2020, of the period during which the allowance is paid to them;
• Legislation on labor loan is relaxed, until December 31, 2020: (i) the agreement between the lending company and the user company may relate to the provision of several employees, (ii) the amendment to the employment contract may not include the working hours (in this case it specifies a weekly volume of working hours and the working hours are set by the user company with the employee's agreement), and (iii) consultation of the CSE may be carried out downstream, within one month of the signing of the provision agreement. In addition, when the interest of the user company justifies it in view of the economic difficulties linked to the spread of Covid-19 and it falls within sectors of activity particularly necessary for the security of the Nation and the continuity of economic and social life, labor loan operations are not for profit (and are therefore lawful), even when the amount invoiced by the lending company to the user company is lower than the increased wages social security charges and professional costs, or is equal to zero - this temporary device allows in particular a free staff loan within groups.

The major innovation of the law of June 17, 2020 is the creation of a specific partial activity device called "Reduced activity for job retention" (or “ARME”), intended to ensure continued employment in companies facing a lasting reduction in activity which is not likely to compromise their sustainability. The WEAPON does not replace but is added to the common law system, until June 30, 2022.

The employer can benefit from this system subject to the conclusion of a collective agreement establishment, company or group, or an extended branch agreement, defining the duration of application of the agreement, the activities and employees concerned, reductions in working hours that may give rise to compensation in this regard and the commitments specifically entered into in return, in particular for maintaining employment. A decree will specify the content of the agreement. The company wishing to benefit from the ARME in application of a branch agreement draws up, after consultation with the CSE when it exists, a document in accordance with the provisions of the branch agreement and defining specific commitments in terms of employment. .

The administrative authority validates the collective agreement establishment, company or group as soon as it has ensured the conditions of validity and the regularity of the negotiation procedure, as well as the presence in the agreement of all the required provisions.

The administrative authority approves the unilateral document after having verified the regularity of the CSE information and consultation procedure when it exists, the presence of all the required provisions, compliance with the provisions of the branch agreement, as well as the presence of specific commitments in employment.

The administrative authority notifies the employer of the validation decision within 15 days and approval decision within 21 days. It notifies it, within the same timeframe, to the CSE when it exists and, if it relates to a collective agreement, to the signatory representative trade unions. The decision must be motivated. The silence kept by the administrative authority during the aforementioned periods constitutes a decision to accept validation or homologation. Whether the decision is express or implied, the employer must inform the staff.

The percentage of the compensation and the amount of the allowance may be increased under conditions and in the cases to be determined by decree.

The following are not applicable to the ARME regime:

• The increase in the partial activity allowance provided for in the event of training actions;
• The individualization of the partial activity system provided for by ordinance n ° 2020-346 of March 27, 2020;
• The contractual stipulations relating to the partial activity, concluded before the entry into force of the law of June 17, 2020.