Partial unemployment, paid leave, participation and interest ...: analysis of the new reforms
BDO sheds light on the latest reforms made by the Government by decree and ordinances.
Taken under the Emergency Law of March 23rd, 2020, the Government is rapidly reforming by decree and ordinances of March 25th, 2020 the partial operation and certain provisions of the Labour Code to adapt it to the current crisis situation but above all to help businesses cope with the coronavirus epidemic.
BDO sheds light on the main new features:
1) Partial unemployment: a better company reimbursement, a reduction of instruction times...
Pre-request - Delay to file the authorization request to the administration
The employer now has 30 days to file its request as soon as the employees in partial employment are effectively introduced. The prior request is no longer required in the epidemic context (c. traves. art. A. 5122-3 amended).
Consultation of the Social and Economic Committee (SEC)
The decree tells us that the employer now has 2 months from the request to send the notice issued by the SEC (c. trav. art. A. 5122-2 amended). This is no longer a prerequisite because of the exceptional circumstance arising from the epidemic.
Administration response - implicit decision
The administration's response time (or implied decision in case of response absence) is reduced from 15 days to 2 days until December 31st, 2020, regardless of the case of partial operation (exceptional circumstances, current or non-current epidemic type) (c. trav. art. A. 5122-4 amended).
Partial operation authorization can now be granted for a maximum of 12 months, renewable, up from 6 months previously (c. trav. art. A. 5122-9, l modified).
Partial activity allowance reimbursed to employer
The partial activity allowance reimbursed by the state to the company is no longer lump-sum.
It is now only set at 70% of the gross hourly earnings of the employee retained within the limit of 4.5 SMIC, regardless of the company size (c. trav. art. R. 5122-12 and D. 5122-13 amended).
This allowance is at least equal to 8.03 euros (excluding apprenticeship and professionalization contracts paid as a percentage of the SMIC).
Employees on an annual flat-rate package in days and hours
From now on, employees in a flat rate agreement in hours or days during the year, can benefit from the partial operation without restriction.
Precision: even for those whose activity will only be reduced and who will therefore not be in total partial unemployment.
Decree 2020-358 of March 25th, 2020, Official Journal of 26th, text 55
2) Maintaining supplementary pay by the employer in the event of a work stoppage (or not related to Covid-19)
Ordinance 2020-322 of March 25th, 2020 now provides for 4 major new features applicable until 08/31/2020:
- Temporary removal of the minimum 1-year seniority requirement in the company in order to benefit from the employer's supplementary allowance;
- Removing the condition of sending the work stoppage to his employer within 48 hours;
This temporary solution makes perfect sense since, in this epidemic period, the vast majority of sick and COVID-19-related stoppages are mostly reported by the employer itself on the ameli.fr website.
3. Removing the condition of being treated on French territory or in one of the other EU or EEA Member States.
4. Benefits of supplementary allowances for employees working from home, seasonal employees, intermittent employees and temporary employees.
The ordinance comes into effect on March 26th, 2020 (ord. 2020-322, s. 3). However, we do not have the specifics of whether all these terms apply to work stoppages prescribed before that date. We will let you know as soon as we have more details.
Ord. 2020-322 of March 25, 2020, art. 1 and 3, Official Journal of 26, text 50
3) Participation and interest: delaying the payment deadline!
Also announced by the Government, the order issued at the Official Journal on March 26th has derogatorily changed the payment limit for participation and interest for this year.
In principle, the sums derived from participation and interest are paid to the beneficiaries, or allocated to a salary savings plan, before the first day of the 6th month following the end of the company's financial year.
As a waiver, the deadline is extended by order to December 31st, 2020 (ord. 2020-322 of March 25th, 2020, s. 2).
Ord. 2020-322 of March 25th, 2020, art. 2, 26, text 50
4) The management of paid leave and suitable working hours by the employer!
Ordinance 2020-323 of March 25th, 2020 is important because it clarifies many of the points also expected by companies and adapts the Labour Code in terms of paid leave and working hours in particular.
Here are the main points to remember:
Management and taxation of paid leave:
The employer can now until 12/31/2020 and subject to an enterprise agreement (or branch):
- Split the main leave (4 weeks of summer) without obtaining the employee's consent;
- Force employees to take acquired paid leave, including before the opening of the paid leave period (May 1st, 2020 in the general case excluding conventional accommodation);
- Unilaterally change the dates of paid leave already set;
The limit is set at 6 working days (i.e. 5 business days) with the mandatory compliance with a notice period of at least one day.
We can note that this precondition for concluding an enterprise agreement in the absence of a Branch agreement may limit the possibility of being able to impose or modify paid leave to employees.
Management and taxation of TWR:
The employer can now up to 31/12/2020:
- Impose (or change the dates) of acquired TWRs or days of rest acquired under an agreement to adjust working time and days of rest acquired under a day-to-day package, if "the interest of the company justifies it in view of the economic difficulties associated with the spread of covid-19".
- Change the dates of the days of rest already set
- Force that the duties assigned to a time savings account (CET) be used as days off.
TWR and CET: The total number of days of rest that the employer can impose on the employee or whose date he can change is limited to 10.
Maximum working hours in some sectors:
Companies in "sectors of activity particularly necessary for the security of the Nation and the continuity of economic and social life" will be able to deviate from maximum working hours within the following limits:
- Up to 12 hours of work per day, instead of 10 hours;
- Up to 60 hours of work per week, instead of 48 hours;
- Up to 48 hours of work per week over a period of 12 consecutive weeks, instead of 44 hours.
The daily rest period may be reduced (up to 9 hours in a row), Sunday and night work possible as well.
These areas of activity will be clarified soon by decree.
Ord. 2020-323 of March 25th, 2020, Official Journal of 26th, text 52
“Our experts are constantly monitoring regulatory changes providing support to businesses. Our articles are updated by midday on the basis of press releases and the publication of decrees by official bodies, which are deciphered by our experts. There may sometimes be a couple of hours delay between the official texts and our publication, the purpose of which is to provide you with preliminary answers to your questions."