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    Managing HR Through COVID-19
    A Practical Guide for Multinational Employers

    Prepared by Mayer Brown

    As at April 16, 2020

     

    Overview

    This guide will help employers manage HR legal and practical issues arising from COVID-19. It covers:

    1. Good Practice Guidance giving high-level consideration;
    2. An Action Point Checklist drilling down into the detail; and
    3. Answers to Key Questions facing employers in France.

    This publication has been written by Mayer Brown and forms part of a wider Mayer Brown Guide for Multinational Employers, which is available here.

     

    CONTACT: Mayer Brown  |  Régine Goury |  Partner  |  rgoury@mayerbrown.com | +33 1 53 53 43 40

     

     

    Good Practice

    There are a number of key good practice points that employers across all jurisdictions will want to consider in connection with COVID-19:

    1. Keep up-to-date with accurate information

    It is difficult for an employer to make proper decisions based on rumors, assumptions and “fake news”. Therefore, it is important for an employer to stay up-to-date with accurate information and make decisions based on facts. Employers should monitor official sources, including government advisories and the World Health Organization (“WHO”) website, and check that the information they receive is factually correct.

    2. Know where your employees are and where they have been

    An employer cannot keep its employees out of harm’s way if it does not know where they are and where they have been. As outbreaks of COVID-19 occur in various parts of the world, keep track of which of your employees could be at risk.

    3. Communicate with your employees

    Employers should communicate openly and often with their employees so that they have the information they need to help keep themselves educated and updated about the coronavirus. It should not assume that all employees will educate themselves or have access to the same sources of reliable information. Putting everyone on the same page will help the employer and its employees move together in a timely manner as a business. Open and timely communication will help build trust and reduce the spread of rumors that may cause anxiety in the workplace.

    4. Provide a safe platform for employees to raise concerns

    Employers should give employees a safe platform where they can raise concerns on all aspects related to work, from mental health to the risk of having contracted COVID-19. This is not just good employee relations, but early detection and doing something about it can help to reduce the spread of the virus. It is one thing to have an employee assistance plan and ask employees to report issues, but if those who report are stigmatized or treated with contempt, employees may be deterred from reporting.

    There may be nervousness and anxiety in the workplace, and possibly even conflicts, given concerns about the virus. Employees should be given avenues to communicate such anxiety to their employer, so that concerns are addressed earlier and do not balloon into bigger issues.

    5. If you can be flexible, then be flexible

    Employers should understand that this is a time of stress for all parties, including employees. Recognize that employees will have different needs depending on their circumstances (e.g., those with school-age children may need more time off as school classes are suspended).

    This time of uncertainty will pass but employees will remember how their employer treated them long after the threat of the virus has disappeared. A disgruntled employee may try to make it known to the world how badly their employer treated them. This may affect the employer’s brand and ability to attract and retain talent. The employer may then have to wait for another crisis or challenging time to get the opportunity to prove itself as a good employer.

    6. One size may not fit all

    While consistency in treatment is generally to be favored, be conscious that one size may not fit all. For example, “work from home” or remote working may not work for everyone. The implementation of general directives should be checked against legal obligations under the contract of employment and local law.

     

     

    Action Point Checklist

    In general terms, the steps an employer needs to be taking now relate to four categories: Review, Communicate, Update and Travel. No list of action points will be comprehensive for all employers, but the following will form a good starting point.

    1.  Review

    • Review business continuity plans and how these would be maintained if employees are suffering from coronavirus absences.
    • Review existing sickness policies and procedures. Are they adequately disseminated to staff? Do they need amending?
    • Review contracts of employment. It may be relevant to establish whether or not individuals can be asked to undertake different work or at different locations or at different times from the norm.
    • Review the employer’s emergency procedures, e.g., if there is an infection and the workplace is closed on a temporary basis. If appropriate, carry out a test run of an emergency communication to see how robust the process is.
    • Ensure contact details for all staff are up-to-date.
    • Undertake a risk analysis of high-risk groups of employees, and what steps can be taken to try and reduce risks for those groups. These groups may include:
      • those who travel frequently to countries where there is currently or may well in future be a risk of infection.
      • those with health issues, such as asthma, diabetes, cancer, or those who are pregnant, who are more likely to suffer adversely if they become infected with the virus.
    • Review procedures in the office for preventing the spread of the virus, e.g. increased cleaning, availability of hand sanitizers and tissues etc.
    • Review planning for the possibility of large scale absenteeism. For example:
      • Identify the essential positions within the business, what needs to carry on during an emergency, and what is the minimum number of employees required.
      • Identify employees with transferable skills so that these essential positions can always be temporarily filled.
      • Consider flexible work patterns, such as employees working from home.
      • Identify those employees who have the necessary IT infrastructure to work from home (e.g., remote access to the office computer systems).

    2.  Communicate

    • Identify an appropriate person as spokesperson/communicator of updates on policies etc., with appropriate credibility.
    • What, if anything, is said about absence from work for reasons other than ill-health, e.g., where an office is closed?
    • Assuming the employer has a health and safety committee, have there been any discussions with that committee about COVID-19 and its potential impact? If there is no such committee, the employer may want to consider setting one up.
    • Communicate as a matter of urgency with the high-risk groups identified in any risk review to ensure they are aware of their high-risk status and the measures that are being taken to assist.
    • Ensure managers are aware of the relevant workplace policies.
    • Consider issuing guidance to employees on how to recognize when a person is infected with the coronavirus. What are the symptoms, and what should one do if one is taken ill at home or at work? It is also important to emphasize that individuals may not recognize that they have the virus and so may not be exhibiting symptoms. Employees should be informed of the reporting procedure within their employer if they have a potential infection as well as any official reporting process.
    • Provide advice to encourage individuals to take a degree of responsibility for their own health and safety and to slow the spread of the virus. For example, advice on handwashing and use of sanitizer gels, coupled with a willingness to self-identify where it is possible that individuals have come into contact with individuals with the virus, have become infected themselves or have returned from private travel abroad to an area which turns out to be affected by the virus.
    • Make clear that where staff are ill, they must not come to work regardless, i.e. “struggle through”.

    3.  Update

    • Initiate a system to keep up-to-date, especially given the speed at which infection is spreading.
    • Consider establishing a committee on the employer’s side to coordinate responses and engage with any staff consultative forum, and with particular responsibility for staying up-to-date with public health updates.
    • How will employers communicate to employees regular updates on the coronavirus and its spread? As news develops, it is extremely important for an employer to be issuing fact based updates, to avoid the possibility of fear being used by worried employees to make decisions about whether or not to come to work, whether to travel abroad, etc.
    • Who will have the authority to determine changes to policy and issue any new communications to staff?

    4.  Travel

    • Log employee travel before it is booked and check against the latest travel protocols.
    • Ensure staff know that this applies to personal travel as well as business travel.
    • Encourage staff to tell you if close family members with whom they share a house are travelling to infected areas.
    • Replace face-to-face meetings (especially those involving travel) with video conferences, telephone conferences, etc.
    • Consult/communicate about whether to encourage varied work patterns to avoid travelling on public transport at rush hour.

     

     

    Country Overview

    As at April 16, 2020

    Update: Confinement

    Since March 17, 2020 confinement measures are in place which have now been renewed up to May 11, 2020.

    Some public places are shutdown:

    • places welcoming the public not essential to the life of the nation, such as cinemas, bars or nightclubs, etc.;
    • shops, except those of an essential nature, such as food shops, pharmacies, banks, service stations or press distribution;
    • markets except those authorized; and
    • schools and universities.

    Meetings of more than 100 people are also prohibited, whether indoor or outdoor. In any case, people should comply with confinement measures as exposed below.

    It is prohibited until May 11, 2020, for anyone to travel, except for the following reasons:

    • travel between home and place(s) of work when the activity of the employee is essential for the performance of activities which cannot be organized by way of work from home (with permanent justification) or professional travels which cannot be postponed;
    • buying essential goods in authorized shops;
    • health reasons;
    • imperative family reasons to assist persons at high risk or child care;
    • short journeys close to home for at maximum one hour and within a perimeter of one kilometre around home for individual sport activities, walks with person of the same domicile and needs of pets;
    • travel required by the police, administrative or judicial authority; and
    • travel to fulfil general interest missions as defined by administrative authority.

    Employees travelling must carry a duly completed and signed form which they must be able to show at control points. Should they fail to do so, they may be subject to a fine between €135 and €375 which is increased in case of repeated offence up to €3,750 and also to a six-month imprisonment at maximum in case of repeated offence.

    Individual forms must be filled in for any travel with the date and hour.

    For professional travels, employers can fill in and stamp a form to allow essential employees to travel for professional purposes between home and office for the periods they define.

    Specific forms exist for travel to French overseas communities and for international travel.

    These forms can be downloaded using the following link (a bilingual French/English version is available):

    https://www.interieur.gouv.fr/Actualites/L-actu-du-Ministere/Attestation-de-deplacement-et-de-voyage

    It is also possible to download and fill in the individual form on a mobile phone.

    All responses to the questions in this section should be read in conjunction with this update regarding the temporary shutdown.

    1. What are an employer’s main legal obligations?

    The main areas of an employer’s legal liability associated with coronavirus in the workplace include:

    • Ensuring, by all available means of action, the workplace health and safety of employees (as per the Labor code and case law).
    • Continuing to pay an employee if the employer requires them to stay at home or top up the salary when the employee is on sick leave.

    Making sure the company has taken health insurance as required by law and, as the case may be, by the applicable industry-wide collective bargaining agreement (“IWCBA”), and welfare insurance (life, disability, incapacity) as may be required by the applicable IWCBA.

    2. Do I need to prepare for and have in place a workplace plan to deal with COVID-19?

    It is strongly recommended that companies set up a business continuity plan as per ISO norm 2230:2019: https://www.iso.org/files/live/sites/isoorg/files/store/en/PUB100442.pdf

    There is a legal obligation for all companies to have a single professional risk assessment document, to update it regularly and when a new risk arises. Deriving from this risk assessment, a prevention plan should be drawn up on a yearly basis or sooner in the case at hand, the Social and Economic Council (“SEC”) should be informed and consulted on such plan, appropriate actions should be taken, and employees informed.

    3. What should a workplace COVID-19 response plan cover?

    Such plan should be part of the wider global prevention plan and the French government has recently published updated guidelines:

    https://travail-emploi.gouv.fr/actualites/l-actualite-du-ministere/article/coronavirus-questions-reponses-pour-les-entreprises-et-les-salaries

    For general guidance on the contents of a workplace COVID-19 response plan, please see the Appendix, in conjunction with the Action Point Checklist.

    4. Can I direct my employees to go home or stay at home if there is an outbreak?

    For employees returning from an area at risk or having been in contact with an infected person, or the employee is infected but has mild symptoms, remote work should be used whenever possible.

    Remote work is possible with a simple agreement between the employee and the employer by any means (email), even though it is highly recommended that rules are set through an internal policy or a company collective-bargaining agreement. Furthermore, in case of epidemic risk, remote work can be decided by the employer without the agreement of the employee.

    If remote work is not possible, for serious health and safety reasons, the employer may request one of the above-mentioned employees to stay at home.

    Also, the French government has specified that measures of temporary unemployment are available for companies seriously affected by COVID-19. Such system allows the employer to close part or all of its business activity or reduce its employees’ working time. Employees are under “partial work”, their contract is suspended for the non-work portion, and they cannot come to work. The employer must pay its employees an indemnity equal to 70% of their gross remuneration (not lower than €8.03 per hour or more if training measures are put in place), which is not subject to social security contributions and only to a reduced employee tax (CSG/CRDS of 6.7%). The maximum number of unemployed hours is 1,000 hours per year and per employee. The employer can claim reimbursement for this indemnity to the State. However, the salary taken into account is capped at 4.5 times the minimum salary in France (i.e. €6,927.39 gross per month).

    Requests can be made online: https://activitepartielle.emploi.gouv.fr/aparts/

    For more details, see legal update: https://www.mayerbrown.com/en/perspectives-events/publications/2020/03/covid19-update-on-new-social-measures-in-france

    5. Can I direct an employee to see a doctor?

    No, this relates to privacy. An employer can only recommend that an employee see a doctor. If an employee who is obviously ill refuses to do so, the employer can make an appointment with the company occupational doctor, who has limited power.

    6. Do I have to continue to pay wages and provide other employment-related entitlements during a COVID-19 outbreak?

    If the employee is required to stay home by a public authority (quarantine): If the employee is identified as high-risk by the Regional Health Agency’s doctor, they may benefit from a certificate allowing them not to work for 20 days. In that case, the employee will benefit from a specific daily social security allowance. The employer has a duty to top up the salary as per the law or the IWCBA with no waiting period. The same applies for a parent who must look after a child whose school is closed and with no need of a medical certificate. It only applies to one parent. In case of partial activity, the latter prevails on the certificate.

    If the employer requires the employee to stay home: The employer will have to continue to pay the employee even if no work is performed.

    If the employee decides to stay home: If the employer has taken all reasonable measures to protect the health and safety of its employees, the employee is not entitled to stay at home and the employer has no duty to pay them.

    If the employee provides a sickness certificate: The employee will benefit from a daily social security allowance, which the employer has a duty to top up. The percentage and length of guaranteed salary depends on the applicable IWCBA. By law, it should be, at a minimum, equal to 90% of gross remuneration for one month and 2/3 for the next month for employees with at least one year of service with the company. The mandatory waiting period has been temporarily suspended. In many cases, it is much longer and equal to 100%. Such payments are often covered by company welfare insurance.

    7. Can I quarantine certain staff to certain parts of an office or send them to a different office?

    For employees returning from an area at risk or having been in contact with an infected person or the employee is infected but has mild symptoms, such measures are possible. However, given the fact that this changes the organization structure at work, the SEC should be informed and consulted before announcing and/or implementing such measures. Also, unless otherwise provided by the employment contract, the employer is entitled to unilaterally change the place of work in the same employment area as assessed by courts (roughly a 50-km perimeter or a one-hour one-way travel). Outside this area, it is considered to be a change in the terms of the employment contract and is subject to the employee’s agreement.

    8. Can I direct my employees to report suspected cases of COVID-19?

    It may be considered legitimate for an employer to ask employees to report suspected cases.

    9. Can an employee lawfully refuse to attend work if there is a COVID-19 outbreak?

    The French labor code provides for the right for an employee to refuse to attend work (right of withdrawal) in a work context when it generates a serious and imminent danger to their life and health. With regard to COVID-19, the French labor administration has considered that, when an employer has taken all reasonable measures, as illustrated above, to protect its employees’ health and safety, employees are not justified to refuse to attend work.

    10. Can I screen employees and customers before allowing them to enter the workplace?

    The French government has recently specified that companies can implement fever-testing to persons wishing to access one of their sites. This measure should be implemented by way of an internal note having the value of an addendum to the company’s internal rules of immediate effect. The SEC and the labor inspectorate must be informed. However, measures must be proportionate to the objective sought, offer appropriate guarantees to individuals in terms of information and data retention, and respect the dignity of individuals.

    CONTACT: Mayer Brown  | Régine Goury |  Partner  |  rgoury@mayerbrown.com | +33 1 53 53 43 40 

     

     

     

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    Appendix: Workplace COVID-19 Response Plan

    A plan should deal with the following:

    BEFORE AN OUTBREAK

    • Preventive measures.
    • Disinfecting the workplace regularly.
    • Maintaining good indoor ventilation.
    • Making sure that employees, suppliers and customers are aware of the employer’s plans in the event of an outbreak.
    • Ensuring sufficient supplies of appropriate masks, alcohol wipes, gloves, paper towels, thermometers, disinfectants, etc.
    • If employees are required to travel to areas known to have the virus, whether such travel is necessary.

    DURING AN OUTBREAK

    • The steps the employer will take to ensure the safety of employees while at work during a COVID-19 outbreak include how an employer will identify risks of employees becoming infected and how to minimize such risks. The employer may also wish to seek advice from government/official sources as to what steps need to be taken, e.g., quarantine requirements.
    • Communication strategies, such as how and what information will be communicated to employees, suppliers and customers.
    • Where employees will work, e.g., home, in the office or in alternative temporary offices.
    • How to deal with infection and/or deaths of colleagues, e.g., counselling.
    • A mechanism for determining whether employees, suppliers and customers will be allowed access to the workplace, especially if they show symptoms of being infected by COVID-19.
    • What to do with high-risk/exposure staff (e.g., pregnant, key employees and employees who travel).

    AFTER AN OUTBREAK

    • Ways to ensure that employees and customers have fully recovered before they are allowed back into the workplace.
    • Rehabilitation for sick employees returning to the workplace.

    Communication with employees and flexibility on enforcing requirements imposed on employees under their contract of employment will be important in maintaining employee relations and reducing anxiety and panic during an outbreak Therefore, subject to local legal obligations and requirements, and depending on the circumstances, employers may wish to:

    • Discuss with staff the possibility of a workplace closure prior to closing.
    • Allow employees to take annual leave or unpaid leave once sick leave has been exhausted.
    • Allow employees to work from home.
    • Explore salary reduction or unpaid leave as an alternative to termination of employment where business has slowed down.

    Employers should make visitors to its offices aware of any health and safety hazards associated with entering the workplace before any intended visit, where reasonably practicable.

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    Related Articles

    For more information relevant to Coronavirus COVID-19, please visit our website.

     

    This publication by Mayer Brown provides information and comments on legal issues and developments that may be of interest to our clients and friends. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek legal advice before taking any action with respect to the matters discussed herein.