By Nicolas Lepetit, Partner

In order to respond to the new progression of the Covid-19 epidemic, also called the “second wave”, the Government has decided to re-declare thestate of health emergency, from October 17, 2020, throughout the national territory, under the terms of decree n ° 2020-1257 of the October 14 2020.

Then, as of October 30, 2020, a reconfiguration of the population was decided, by virtue of decree no.2020-1310 of October 29, 2020, already amended several times.

The bill authorizing the extension of the state of health emergency and providing for various measures to manage the health crisis was adopted by the National Assembly on November 7, 2020. The law has not yet been promulgated to date.

On the other hand, new texts have already been adopted for employers and employees, mainly to adapt partial activity mechanisms.


1. Ordinance No. 2020-1255 of 14 October 2020 on the adjustment of the allowance and the partial activity allowance

It is recalled that the rate of the partial activity allowance (paid to employers) is increased in certain sectors (tourism, hotel industry, catering, sport, culture, air transport and events), and may be increased in others. sectors for the benefit of companies that welcome the public. For these companies called "protected sectors", the ordinance of October 14, 2020 specifies that their activity can be interrupted " partially or totally », Excluding voluntary closures.

The same text provides that the rate of the partial activity allowance (paid to employees) can also be modulated, by decree, according to the sectors of activity.

These provisions apply - for the moment - until December 31, 2020.


2. Decree n ° 2020-1316 et decree n ° 2020-1319 of October 30, 2020 relating to the partial activity and the specific partial activity mechanism in the event of a lasting reduction in activity (APLD)

a/ On the partial activity of common law

In companies with at least 50 employees, the social and economic committee (CSE) must be informed, at the end of each authorization to use partial activity, of the conditions under which this system has been implemented.

When the request for authorization or renewal of the partial activity relates, for the same reason and the same period, to at least 50 establishments, the employer can send a single request to the prefect of the department where any one is located. of these establishments.

Starting from 1er January 2021, a partial activity authorization can only be granted for one maximum duration of 3 months, renewable within the limit of 6 months, consecutive or not, over a period of 12 consecutive months. By way of derogation, in the event of an accident or bad weather of an exceptional nature, the authorization may be granted for a maximum period of 6 months, renewable in return for commitments relating in particular to maintaining employment and / or training. However, when the employer has benefited from a partial activity authorization before 1er January 2021, this period is not taken into account for the application of these new provisions.

Starting from 1er January 2021 :

  • The hourly rate ofactivity allowance part of common law (served to employees) will increase from 70% to gross remuneration (limited to 4,5 minimum wage);
  • The hourly rate ofactivity allowance part of common law (served to employers) will increase from 70% to gross compensation (limited to 4,5 minimum wage), with a floor going from 8,03 to 7,23 euros.

Please note: By virtue of decree n ° 2020-810 of June 29, 2020 as amended, the hourly rate of the partial activity allowance had already been reduced to 60%, last until December 31, 2020, therefore. By way of derogation, in the "protected sectors" as defined above, this rate was maintained at 70%, again until December 31, 2020.

Decree No. 2020-1319 modifies and completes the list of "protected areas".

b/ About the APLD

In the event of dismissal for economic reasons of an employee placed in an APLD, or of an employee that the employer had undertaken to keep in employment, the administrative authority may ask the employer for the reimbursement of the allowances which were paid to him, except if this reimbursement is incompatible with the economic and financial situation of the company, or if the business outlook has deteriorated compared to those initially planned. Decree n ° 2020-1316 adds that, when the employer intends to benefit from the aforementioned exemptions or the administrative authority indicates that it does not intend to request such reimbursement, the CSE and, where applicable, the signatory trade unions of the collective agreement, must be informed.

The hourly rate of the APLD allowance paid to the employer (in principle 60% of the gross remuneration limited to 4,5 SMIC) is equal to the hourly rate of the partial activity allowance under common law when the latter ci is greater.

3. Decree n ° 2020-1317 of October 30, 2020 determining the sectors of activity in which employers are temporarily authorized to make loans of labor under adapted conditions.

Article 52 of Law No. 2020-734 of June 17, 2020 provided for the possibility, for companies in sectors of activity particularly necessary for the security of the Nation and the continuity of economic and social life, which face economic difficulties linked to the spread of the Covid-19 epidemic, to be loaned labor, even when the amount invoiced by the lending company is lower than the amounts of salaries, charges social security and professional costs or is equal to zero, until December 31, 2020.

Decree n ° 2020-1317 finally establishes the list of these sectors : Health, social and medico-social; aircraft construction; food industry ; maritime transport.


4. Documents to consult

Travel declaration derogatory and proof of business trip

National protocol to ensure the health and safety of company employees in the face of the Covid-19 epidemic, updated to October 29, 2020

Questions answers "Partial activity under common law" of the Ministry of Labor, updated to November 9, 2020

Questions answers "Long-term partial activity (APLD)"from the Ministry of Labor, updated on November 3, 2020


Nicolas Lepetit


Prior to joining Ginestié Magellan Paley-Vincent, Nicolas Lepetit worked at Legrand Bursztein Beziz, avocats (LBBa) law firm, then worked at Bersay & Associés for more than 10 years and lastly as Of Counsel.