COVID-19: French Government Allows Derogations from Labor Law by Ordinance

March 27, 2020

A French public health emergency bill authorizes the government to derogate from certain legal and regulatory provisions by means of ordinances in order to deal with the economic, financial, and social consequences of the coronavirus (COVID-19) pandemic.

The public health emergency bill was voted by the French National Assembly on March 23. Ordinances issued on March 26 provide for derogations from the legal provisions on paid holidays and working hours.

Paid Holidays

First, a company agreement or, failing that, a branch agreement may determine the conditions under which an employer is authorized to decide on the dates of holidays acquired by an employee. The employer can also unilaterally modify the dates of holidays already fixed.

There are two limits: (1) the number of days: six days' leave and (2) the mandatory observance of a notice period, which may not be less than one clear day (compared to one month in principle).

The agreement may also authorize the employer to split the holidays without the employee's consent and to fix the dates of the leave without being obliged to grant simultaneous leave to spouses or partners working in the employer's undertaking.

Second, where justified by the interests of the undertaking and by way of derogation from the company or branch agreement on working time reduction, the employer may, subject to a notice period of at least one clear day,

  • impose the dates determined of days off (rest days in relation with the reduction of working time), which are in principle at the choice of the employee; and
  • unilaterally modify the dates on which days off are taken.

Similarly, the employer may, subject to observing a notice period of at least one clear day,

  • decide the dates of rest days provided for in a working-time agreement (“convention de forfait heures et jours”); and
  • unilaterally modify the dates on which those days are taken.

The employer may also require that the entitlements allocated to the employee's time-saving account be used to take rest days, the dates of which the employer shall determine by observing a notice period of at least one clear day.

The total number of days off that the employer may require the employees to take or whose dates it may change may not exceed 10.

Working Time

In undertakings within sectors of activity deemed necessary for the security of the nation and the continuity of economic and social life (a decree will determine those sectors), the following derogation may be made from the applicable rules:

  • 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 rest period equal to the excess of hours worked
  • The length of the daily rest period may be reduced to 9 consecutive hours, subject to the granting of a compensatory rest equal to the length of the rest period from which the employee was unable to benefit
  • The maximum weekly worked period may be extended to 60 hours
  • The weekly working time calculated over any period of 12 consecutive weeks may be extended to 48 hours
  • The weekly working time of a night worker calculated over a period of 12 consecutive weeks may be extended to 44 hours

For each of the sectors of activity referred to, a decree shall specify, in compliance with the objective of protecting the health of workers, the categories of derogations permitted and the maximum working time or minimum rest period that may be fixed by the employer. In other words, those derogations may be different from one sector to another.

An employer that makes use of at least one of these derogations shall inform and consult the Social and Economic Committee and the labor administration without delay and by any means.

The same undertakings may derogate from the Sunday rest rule by allocating the weekly rest in rotation.

This derogation shall also apply to undertakings that provide those referred to above with the services necessary for the performance of their principal activity.

The derogations implemented on the basis of this ordinance shall cease to have effect on December 31, 2020.

Coronavirus COVID-19 Task Force

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If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Charles Dauthier
Sabine Smith-Vidal