France started to ease its lockdown measures on May 11th 2020.

All shops and businesses are now allowed to reopen.

When possible, the use of teleworking for employees must continue to be favoured.

In order to help and support enterprises to resume their activities while ensuring the protection of the health of their employees, the Ministry of Labour has published a national de-containment protocol. Business guides have also been established.

In view of this gradual resumption of activity, it is important for the employer to take the maximum precautions to limit the risks of liability.

Employer’s obligations

Due to the coronavirus pandemic, regardless of the company’s situation, the employer must provide information to all wage-earners about precautions to prevent the virus from spreading: soap, hydroalcoholic solution, provision of protective masks, social distancing…

The employer must ensure that the department’s risk assessment is consistently adapted and transcribed in the Single Risk Assessment Document.

This update should identify work situations in which the conditions for transmitting COVID-19 may be met, such as a contact with a contaminate person, e.g.: same living place, direct contact within a metre at the time of cough, sneeze, or talk of more than 15 minutes in the absence of protective measures.

Civil and criminal liability of the employer

In the event of an infection with the virus, if it is dealt with as an accident at work by the social security, a possible inexcusable fault of the employer which entitles to a full compensation of the damage can be retained only if it is shown that he or she was aware of the danger to which the employee was exposed and that he or she did not take the necessary measures to preserve it.

In criminal matters, Article 223-1 of the Penal Code penalizes both the employer’s fault and the fault of a salaried employee in cases of exposure through negligence or absence of measures.

In fact, in accordance with his or her training and possibilities, he or she must also take care of his or her own acts or omissions at work.

Creation of a new article L. 3136-2 of the French Public Health Code within the framework of the state of health emergency

It should be noted that Law 2020-546 of 11 May 2020 extended the Health Emergency state until 10 July 2020.

Its Article 1 introduced a new Article L. 3136-2 to the French Public Health Code, relating to sanctions for serious threats and health crises, worded as follows:

“Article 121-3 of Penal Code shall apply taking into account the competences, power and means available to the perpetrator in a crisis situation, as well as the nature of his tasks or functions, including as a local authority or employer.”

The purpose of this article is to regulate the liability of persons who have a role to play during a state of health emergency, and in particular employers.

In the midst of a health crisis, this new article L. 3136-2 gives Article 121-3 of Penal Code a new interpretation relating to the conditions for the engagement of responsibilities.

If the head of the company is prosecuted, the judges will have to assess normal due diligence in the context of the crisis and take account of this particular situation.

For more details, contact Odeon Avocats.

Travelling to Canada? Learn more about The Canada Quarantine Act and its consequences for directors and officers in the COVID-19 era.

Emeline Eraud, Partner – eraud@odeonavocats.fr