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Covid 19 - Update on short time work program

24/04/2020

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France

A new Order, dated 22 April 2020 and released on 23 April 2020, contains some labour law provisions to deal with the covid-19 epidemic.
 
This Order: 
 
  • partially modifies the social scheme of additional compensation for short-time work paid by the employer to employees, 
  • provides for new details concerning how overtime is accounted for in the short-time work, 
  • organises the procedures to individualise short-time work,
  • provides for the publication of a decree concerning the time frame for information-consultation of the CSE and expertise process for decisions relating to the management of the economic, financial and social consequences of the epidemic,
  • provides for an extension of the time frame of the process applicable to occupational accidents and diseases.
Please find below a summary of these measures.
 
1.     Social scheme for short-time work additional compensation
 
Article 11 of Order n°2020-346 of 27 March 2020 provided that additional compensation for short-time work paid by the employer pursuant to a unilateral decision or a collective agreement were exempt from social security contributions and subject to CSG/CRDS at a rate of 6.7%.
 
This provision was amended by Article 5 of Order 2020-460 of 22 April 2020.
 
As from 1 May 2020, when the amount of the legal short-time work compensation and the additional compensation paid by the employer pursuant to a collective agreement or a unilateral decision is greater than 3.15 times the hourly value of the minimum wage ("SMIC") (€31.98), the portion of the additional compensation paid in excess of this amount will be subject to social security contributions applicable to remuneration at the usual rate.
 
This new rule applies to periods of short-time work from 1 May 2020 and does not have any retroactive effect.
 
2.     Overtime
 
Article 7 of Order n° 2020-460 of 22 April 2020 provides details on the recognition of overtime for employees who, before 23 April 2020, have concluded an individual agreement on fixed weekly, monthly or annual hours and for employees whose working hours exceed the legal working hours pursuant to a collective bargaining agreement or agreement concluded before 23 April 2020.
 
Thus, the overtime provided for by the individual flat-rate agreement in hours or by the above-mentioned collective bargaining agreement are taken into account in determining the number of compensated non-worked hours. Until now, only short-time work hours corresponding to the legal working time were eligible for compensation.
 
3.     Individualized short-time work
 
Article 8 of Order n° 2020-460 of 22 April 2020 determines the terms and conditions for recourse to individualized short-time work.
 
Thus, by derogation from I of Article L. 5122-1 of the French Labour Code, the employer may, either in the event of a company or establishment level agreement or, failing that, a collective bargaining agreement, or after a favourable opinion from the social and economic committee ("comité économique et social") or the works council ("conseil d'entreprise"), put only some of the employees of the company or establishment, of a department or workshop, including those in the same occupational category, on short-time work or apply to such employees a different breakdown of hours worked and not worked, where such individualisation is necessary to ensure the maintenance or resumption of activity.
 
The agreement or the document submitted for the opinion of the social and economic committee or the works council shall determine in particular :
 
  • The skills identified as necessary to maintain or resume the activity of the undertaking, establishment, department or workshop;
  • The objective criteria, related to the positions, functions occupied or professional qualifications and skills, justifying the appointment of employees maintained or put on short-time work or subject to a different distribution of hours worked and not worked;
  • The arrangements and the frequency, which may not be less than three months, whereby the abovementioned criteria shall be periodically reviewed in order to take account of changes in the volume and conditions of activity of the undertaking with a view, where appropriate, to amending the agreement or document;
  • The specific arrangements for reconciling the professional, personal and family lives of the employees concerned;
  • The procedures for informing the company's employees about the application of the agreement throughout its duration.
 
4.     Decree concerning the time frame for informing and consulting with the social and economic committee
 
Article 9 of Order n°2020-460 of 22 April 2020 provides that a decree shall define, by way of derogation from the applicable conventional provisions, the relative time limits for :
 
  • Information and consultation of the social and economic committee on the employer's decisions aimed at dealing with the economic, financial and social consequences of the spread of the covid-19 outbreak;
  • the conduct of expert appraisals carried out at the request of the social and economic committee when it has been consulted or informed in the case provided for above.
These provisions are applicable to time limits which begin to run before a date fixed by decree and, at the latest, before 31 December 2020.
 
It is expressly provided that the provisions of Order n°2020-306 of 25 March 2020, which provided for the suspension of certain time limits, shall not apply to the above-mentioned time limits.
 
5.     Extension of the legal timing related to the procedure applicable to occupational accidents and diseases
 
Article 11 of Order n°2020-460 of 22 April 2020 provides for an extension of the time limits applicable to the procedure for recognising the work accidents and occupational diseases and the conditions for this extension.
 
It is expressly provided that the provisions of Order n°2020-306 of 25 March 2020, which provided for the suspension of certain time limits, shall not apply to the above-mentioned time limits.
 

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