Withdrawal Right and Swine Flu

All employees are entitled to an alert right and a withdrawal right if they have reasonable grounds to think that a work-related situation poses a serious and imminent danger to their life and health, i.e., if a threat in the short-term is likely to cause serious harm to their physical integrity.

When the withdrawal right is legitimately exercised, the employee continues to receive his/her full salary although he/she refuses to work throughout the period during which he/she does not work. Moreover, the legitimate exercise of the employee's withdrawal right must not give rise to any sanctions.

The exercise of the withdrawal right is only legitimate if the employee:

1. warned the employer regarding the danger which he/she wishes to protect himself/herself from before or at the same time as the exercise of the withdrawal right;
2. has reasonable grounds to fear for his/her life or health and is in a position to justify taking this measure.

Given the scale and rapid progression of the swine flu virus, the question can be raised whether employees may validly exercise their withdrawal right based on this flu pandemic, in particular if France raises the threat level to phase 6?

In order to reply to this question, it is appropriate to specify that the legitimacy of the exercise of this right is assessed on a case by case basis.

It is of little importance that the danger detected by the employee proves to be non-existent, unlikely or minimal after examination, provided that the employee could reasonably fear its existence or seriousness. Therefore, case law recognizes the legitimacy of this withdrawal, even in the absence of an actual danger, provided that the employee had reasonable grounds to consider that a work-related situation posed a serious and imminent danger to him/her.

Given the extensive nature of the concept of withdrawal right and the wide-ranging diversity of cases which can justify its existence, its limitation in the scope of an environmental risk indirectly linked to the company, seems to be delicate.

Nevertheless, companies would be able to contest the legitimacy of the exercise of such a right if they can demonstrate that they observed all of the provisions relating to prevention of professional risks in view of the risk of a pandemic.

The French Labor Authorities (« DDTEFP ») have published two circulars¹ relating to working conditions in the event of a flu pandemic which cover the issue of the withdrawal right.

The French Labor Authorities (« DDTEFP ») accordingly consider that the withdrawal right is not intended to apply to a general situation of a flu pandemic" in the event where the employer has implemented (1) the provisions laid down by the French Labor code relating to prevention and (2) the national recommendations relating to the prevention of swine flu".

 

• General health and safety provisions

In the scope of the implementation of swine flu preventative measures, companies must comply with general statutory and regulatory provisions relating to professional risks in the workplace. In this scope, companies must have:

1. informed and consulted the employee representatives (Health and Safety Committee ("CHSCT"), Works Council) on the measures implemented;
2. informed and trained the employees on the actual risk of a pandemic;
3. amended the internal regulations by adding an internal memorandum on health and safety in view of the flu pandemic;
4. updated the "single document" relating to the assessment of professional risks in the workplace by including the risk of contamination by a new flu virus.

This update shall enable the employer to confirm that the risk has been identified and assessed in accordance with its general duty of prevention.
 

• Specific recommendations²

The authorities strongly recommend implementing a continuity plan relating to companies' operations³ and the implementation of specific preventative measures in relation to the flu risk. It is accordingly highly recommended that the employer implements a certain number of measures, including for example but not restricted to:

1. informing the employees and training them on health and safety measures to be implemented (e.g., wearing masks);
2. implementing health measures (water, liquid soap, etc.) and giving specific health instructions (washing hands, cleaning surfaces, etc);
3. maintaining adequate stocks of masks and adapted protective equipment (Appendices 10 and 11 of the circular);
4. predefining the measures aimed at limiting the contagion (instructions for employees and visitors, ventilation and waste management, etc.).

According to the French Labor Authorities, provided that the company has complied with the general provisions relating to the prevention of professional risks and specific national recommendations relating to swine flu, the individual withdrawal right may not in theory be applied. All preventative and care measures taken by the employer remove the purpose of this withdrawal right.

Nevertheless, the French Labor Authorities' position is only expressed in a circular, which does not have any prescriptive value. The recommendations and opinions of the French Labor Authorities shall only be taken into account subject to the final decision of the lower courts. Since there is no case law on this matter, it is appropriate to consider that this right may not be exercised on an exceptional basis in the event of a pandemic if the employer has complied with its general and specific obligations relating to prevention, and if the employees are not particularly exposed (close contact with customers: job working at a counter or cash register).

With the prospect of managing the exercise of the withdrawal right, we particularly insist on:

1. informing and training employees (obligation imposed further to the general obligation incumbent on the employer) which shall enable waves of panic and a series of "withdrawals" to be prevented in the event where a pandemic is declared.
2. compliance with the specific recommendations contained in the circular, which shall in any event have an impact on the assessment by the French Labor Authorities and the courts relating to statutory and regulatory obligations in terms of risk prevention and may enable any uncontrolled exercise of the withdrawal right to be prevented.

 

This article is one of several that appear in Paris Employment Newsletter, July - August, 2009.