On 22 March 2020, the French Parliament passed an emergency legislation allowing the government to pass through orders exceptional measures aiming at coping with the Covid-19 pandemic.
One of the orders that have been passed by the Government on 25 March 2020 adapts some provisions of the French Labour Code related to working time, paid leave and rest days due to the current health crisis.
These extraordinary measures entered into force on 26 March 2020 i.e. on the date of their publication.
They are all temporary since the text provides for them to cease to have effect on 31 December 2020.
Two types of exemptions are created by the order:
I – The possibility to impose the taking of paid leave and resting days (articles 1 to 5)
1 – Paid leave (6 days maximum)
As far as it is authorized by a company agreement or, failing that, by an industry level collective bargaining agreement, the employer is allowed to (i) require employees to take paid leave days or (ii) unilaterally change the planned dates of the leave :
- within the limit of 6 working days (“jours ouvrables”[1]) per employee,
- subject to the compliance with a 1-day minimum notice period.
We can infer from the text that this derogation concerns paid leave earned by the employee on the 2018/2019 period, and also the ones earned on the 2019/2020 period (which are normally not intended to be taken yet). In other words, in this health crisis period, an employer may anticipate the period during which the leave earned over 2019-2020 would normally be available to the employee.
2 – Resting days (10 days maximum)
Within the overall limit of 10 days and subject to the respect of a 1-day minimum notice period, the employer may:
- require employees to take some resting days or to unilaterally change their date. This measure concerns the resting days earned by the employee in the context of a working time reduction or a working time arrangement on a period wider than the week (under the French « JRTT » system);
- require employees to take the resting days they are entitled to under their fixed working time computed in days
- require employees to use the rights accrued within their time saving account (« CET »).
Regarding the « JRTT », the text refers to the resting days « at the employee’s choice », suggesting that the « JRTT » left at the employer’s choice are not included in the said 10 days which would only be logical since these resting days can already be imposed by the employer.
II – In the sectors deemed essentials, the possibility to derogate from maximum working time and minimum resting period (articles 6 and 7)
In Companies pursuing activities which are considered as necessary for the Nation’s security and the continuity of the economic and social life, which are to be determined by decree:
- the maximum daily working time may be extended to 12 hours;
- the maximum daily working time performed by a night worker may be extended to 12 hours, subject to the granting of a compensatory resting period equal to the time worked over the usual working time (between 8 and 12 hours);
- the minimum daily resting period may be reduced to 9 consecutive hours (instead of 11 hours), subject to the granting of a compensatory rest equal to the duration of the rest the employee was unable to take;
- the maximum weekly working time may be extended to 60 hours;
- the maximum weekly working time calculated over any period of 12 consecutive weeks or over a period of 12 months for certain agricultural holdings, enterprises, establishments and employers mentioned in the Rural Code may be extended to 48 hours (instead of 44 hours);
- the maximum weekly working time of night workers calculated over a period of 12 consecutive weeks may be extended to 44 hours (instead of 40 hours);
- these companies and those which provide the said companies with the services necessary for the performance of their main activity may derogate from the Sunday resting rule by granting weekly rest on a rotating basis.
Any employer intending to make use of such derogatory mechanisms must immediately inform its Social and economic committee (CSE) and the Labour Administration.
[1] To be understood as a day that could be worked as opposed to a day that is worked (eg., the Saturday has to be accounted as a working day even if it is not a day during which an employee usually works).