The happiness of some makes the misfortune of others. The reopening, on Monday evening, of around thirty McDonald's stores in Ile-de-France has brought a smile back to lovers of fast-food. While worrying many readers of 20 Minutes . Many of them, whether salaried in fast food, construction or any other sector of activity, wonder if they are forced to return to work while the confinement put in place against the spread of the Covid -19 has not yet been raised in France:
“I am employed in a fast food chain (Burger King). My boss wants me to go back to work this week. Is it an obligation? In addition, I have two pathologies: do I have the right to say that I want to stay at home? »Moler
“I work at McDonald's. My restaurant reopens the drive and Uber eat before the confinement ends. Do I have to rework? »Ralibenja
“I work in the construction industry and my boss asks to return to work on April 27. Does he have the right since the end date of confinement is set for May 11? " Grind
“My employer asks me to return to work before the date of the deconfinement. I am very anxious about the idea of being with several people, despite the implementation on the part of my employer of all the conditions to ensure the safety of staff. Do I have to go back to work or can I stay on short-term for a few weeks? »Dorian
Here are the answers we found :
Although the readers do not mention it, it is the right of withdrawal and its legitimacy or not which is question. The right of withdrawal allows the employee or the public official to leave his work station or to refuse to settle there without the agreement of his employer, on two conditions, it is recalled on the Service-public site, inter alia: if the work situation presents a serious and imminent danger to his life or his health; if he finds a defect in the protection systems.
Do not place yourself outside the right of withdrawal. However, "from the moment the employer makes available all the necessary protections [masks, gloves, hydroalcoholic gel, etc.], the employee cannot invoke imminent danger," notes Catherine Suter, lawyer in labor law at the Lyon bar. contacted by 20 Minutes . In which case, he places himself outside the right of withdrawal since he was provided with the necessary protections and the employer respected his security obligation. "
The risks. The risk ? That this right of withdrawal be deemed illegitimate, which can then be analyzed as "an abandonment of post which can give rise to a breach of contract, at the employee's fault, for abandonment of illegitimate post", warns the lawyer. A decision which is the sole responsibility of the industrial tribunal. On the other hand, she continues, “if there are no protections recommended to prevent contamination with the new coronavirus, the right of withdrawal is legitimate; the wages must be paid and no sanction can be engaged against the employee, even less a dismissal ”. Conversely, “the employer, who has been shown to have breached security obligations towards his employees, may be prosecuted for breach of contract at his fault and have to pay damages, even prosecuted for inexcusable fault in the event of an industrial accident, ”underlines Catherine Suter.
That being said, one can always wonder how effective are the protective measures put in place? “The debate is much more general, decides Catherine Suter. How, in fact, the employee who goes to work is more exposed than the one who goes for a jog? " In the eyes of the lawyer, "the real problem concerns immunity to the virus and a vaccine that we do not yet have". And to return to the strict framework of labor law: “Take the example of a Seveso site. In absolute terms, we can say that the employee is exposed to a risk of explosion. However, he will not exercise his right of withdrawal. It's like a firefighter who says, "I'm not going, I'm afraid of getting burned." "
Work stopping. Regarding the resumption of activity before the end of confinement, there are two cases. Either the employer carries out an activity prohibited by the State during the health crisis (performance halls, restaurants welcoming the public ...), or its activity is authorized (pharmacies, service stations, banks ...), again by the State . Furthermore, recalls the Ministry of Labor, "when employees are placed in a position of partial activity, the employment contract is suspended, but not broken". The employer has the right to ask them to come and work again. If he does not want to return, the employee commits to abandon his post. In addition to the absence of salary payment, this abandonment, if it is repeated despite the employer's requests, exposes him to dismissal for serious misconduct.
The other remedy available to an employee who does not want to return to work on the premises of the company, in the event that he fears for his health or that of his loved ones, which he does not want to contaminate, is to "present sick leave, ”says Catherine Suter. Stop which must be prescribed by his doctor. If the employee has a pathology that makes him vulnerable to the virus, or if he indeed lives with a vulnerable person (elderly, sick) or that he visits him regularly, in this case, he must open it to his employer.
Other point. "The employee, and this is fairly unknown, is responsible for his own health and safety, but also that of his colleagues," insists the lawyer. Under article L4122-1 of the Labor Code, "it is the responsibility of each worker to take care, according to his training and according to his possibilities, of his health and safety as well as those of the other persons concerned by his acts or omissions at work ”.
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In addition to Social Security, "people who share their home with a loved one who is deemed to be in fragile health, for the conditions listed by the High Council for Public Health, can benefit from a work stoppage".
So that you can see more clearly, 20 Minutes is trying to answer your questions, which you can send us by following the procedure below. Questions which should, we will be grateful, relate to a subject other than that addressed in the article above. Do not hesitate to check that your question has not already been answered on our site. To find out, go to the search bar at the top of our home page. In any case, don't forget to leave your e-mail in your message. Thank you in advance (and take care of yourself)!
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