Deconfinement in the workplace and legal liability
Newsletter - July 2020
The extension of the obligation to wear a mask in closed public areas since July 20th, 2020 doesn’t impact most companies, although they still have to comply with the rules enacted in the national deconfinement protocol, to protect both their employees and their legal liability.
Mandatory masks in closed public areas : no repercussion for most companies
Since July 20th 2020, wearing a mask is no longer only mandatory in public areas such as restaurants, bars and hotels, but also in all closed public spaces. These include stores, administrations, malls, banks and covered markets. Violating this measure is punishable by a 4th class fine. As far as other types of establishments are concerned, the manager can decide whether to require wearing a mask on the premises or not.
What this entails for companies is that only those that welcome forms of public (mostly customers and service users) are affected. While they all have to keep applying the measures described in the national deconfinement protocol (including social distancing and disinfection principles), the majority of companies thus remain unaffected by this new measure.
The latest measures to apply
The updated version of the protocol, released on June 24, 2020, does specify new rules for the workplace, and has made others more flexible.
- The 4 square meters gauge is now an informative tool, and has been replaced by a one meter minimum distance between each worker. If enforcing this physical distance isn’t possible, then employees have to wear a mask.
- Working remotely is no longer the norm, but it has to remain the most favored solution for people who are likely to develop a severe form of COVID-19, as well as for those living with them.
- The new protocol version also describes rules for eliminating garbage, to clean and disinfect surfaces employees are in contact with.
- Ventilating the workplace for 15 minutes every 3 hours is advised.
- If an employee shows COVID-19 symptoms, instructions recommend isolating the person in a dedicated and ventilated room, reaching out to the company’s health staff, and to a physician for a medical opinion.
- The protocol reminds companies that engaging in screening programs for employees is not allowed and that systematically taking their temperature is still not advised.
- A designated person in charge has to make sure these measures are enforced and well known by the staff. Namely, outsourced, seasonal, and short-term contract workers have to be informed about each measure in place.
Employees protection in the workplace : which legal liability for employers ?
Going back to companies’ former physical way of working raises the question of employers’ legal liability in terms of staff security and health. Since no legal base has been clearly defined in this regard yet, one can refer to preexisitng legally acknowledged offences. These include endangering one’s life, deliberately infringing one’s physical integrity, the deliberate failure to assist a person in danger, and to take appropriate actions.
Still, it will be difficult to prove the deliberate nature of employers’ intent to harm their employees during this period. The very measures that would allow to guarantee staff security and health are themselves not even clearly known at this point. More generally, infection risks are diffuse and not only present in a vacuum starting at the company’s doorstep. Thus, except for certain specific situations, in which a clear causal link can be established and proven, employers are not likely to be legally held accountable for employees’ protection from the virus, as long as the recommended governmental measures have been set up in the workplace.
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