- The arrival of Covid-19 in France surprised everyone, including employers, who had to urgently put in place protective measures.
- Undertaken to ensure the health and safety of employees, companies could be sued if they are caught in default. And the government has just opened the way for the recognition of Covid-19 as an occupational disease, automatic for caregivers and "facilitated" for others.
- 20 Minutes takes stock of the various remedies. If they are possible, they turn out to be complicated in many cases.
Slaughterhouses, Ehpad… Despite the general state of alert facing Covid-19, some workplaces have turned into clusters. Employees who had to continue working on site, in contact with users or customers, could be exposed to contamination. And some unions have not hesitated to publicize the deaths of employees who they believe have been contaminated at their workplace.
So inevitably, lawyers expect the arrival of disputes in which employers will be implicated for not having assumed their responsibilities. "I think we are really at the beginning," says Sophie Selusi-Subirats, lecturer in private law at the University of Montpellier, interviewed by the Association of Journalists for Social Information (Ajis). Because the employees will be more and more aware of these elements, that the union organizations will push, that the lawyers will be trained and will not hesitate. This is really part of the current questions of the professional world ”.
It is all the less surprising that the pandemic took everyone by surprise. And this, even though the risk of infection is not foreign to companies and documented by the WHO, observes Sophie Selusi-Subirats. Episodes like the H1N1 in 2009 or the chikungunya in Overseas had already been there, leading companies to adapt. But, a sign of the general excitement on the subject, the government has multiplied health protocols for businesses, depending on their sector of activity. They then "reacted as they could", revealing in some cases the "shortcomings of an effective prevention of professional risks", says Sophie Selusi-Subirats.
Employers already sued
It notes, for example, that in supermarkets, handlers managed supplies without protective equipment, without being trained, without the possibility of washing their hands; that in transport or near the cash desks of stores, the Plexiglas plates were slow to arrive, even though they constituted a good alternative to the shortage of masks… In short, according to the lawyer, some employers may have things to blame . Risk identification, updating of the single risk assessment document, consultation with elected staff, etc. The Labor Code imposes a series of methods to protect the health and safety of employees. And sticking to various health protocols may not be enough.
When these obligations were not followed, certain ESCs or trade union organizations went to court. This is what happened in the case of Amazon: in full confinement, the Nanterre court ruled in summary proceedings that the logistics giant, put on notice by the Labor Inspectorate after a complaint from the South union , had "disregarded its obligation of safety and prevention of the health of the employees" and asked him to lead to a "risk assessment". Threatened to the portfolio in the event of non-compliance with these instructions, Amazon - which considers that it has implemented "very many measures" - decided to stop its activity for a few days, the time to get back in the nails .
An "extremely complex" debate
But all the attempts fail: lack of sufficient evidence, Terra Fecundis, the Spanish temporary employment agency attacked by the CFDT for lack of risk assessment and implementation of protection procedures, was not condemned, while 258 positive cases had been discovered among posted workers.
"The debate will be extremely complex," says Stéphane Bloch, associate lawyer at Flichy Grangé Avocat and member of AvoSial, an association which brings together lawyers specializing in the defense of employers. It would be unreasonable to condemn an employer for not having imposed the wearing of a mask when the doctrine has at least been fluctuating. The employer is responsible, given the current state of knowledge ”. Difficult, therefore, to attack facts that occurred in February or early March, when everyone was sailing on sight.
In the event of litigation, the polemic promises in spite of everything to be lively, the more so as “there are companies which militated to make temperature measurements, tests. But the government considered that it was not possible in the state, "said the lawyer. In summary: "We cannot impose on employers a responsibility that the public authorities have not assumed", he says.
The temptation to "hit the media"
For the professor of private law at the University of Lorraine Patrice Adam, questioned by 20 Minutes , the risks of conviction in court are very far from being insured, so that the recourse of employees or elected staff may not be numerous. On the criminal side, where some expect charges of “endangering the life of others” for example, “the law requires the violation of a particular obligation: a legislative text or a regulation must be imposes a specific safety rule ”. In his view, it is difficult to invoke a simple "general standard" that would not be respected, such as the obligation to protect the health and safety of employers. Not sure either that the health protocols published by the Ministry of Labor can be opposed because they have no legal value…
As for recourse before the industrial tribunal, "the lack of prevention is not in itself a prejudice," says Patrice Adam. Understand: it is useless to try to have an employer sentenced after the fact, who has not provided protection, if no case has finally been detected among the employees. But perhaps SSCs or unions will still try the battle: we would then be in trials whose goal is not so much to win as "to make a media hit, to put back in the spotlight health at work ".
The "belly ball" as "anxiety prejudice"
Unless you demonstrate, but this is again a hypothesis, that the absence of sufficient protection has generated “stress” among employees. Could this "belly ball", known by many employees forced to continue working in confinement time, be qualified as damage and therefore be worth compensation? According to some jurists, the analogy with "prejudice from anxiety" is attempted.
The courts have recognized this damage in the case of minors who have been exposed to asbestos or other toxic substances capable of causing lung disease in them and which have led for years to fear of becoming victims. "As the jurisprudence has started to evolve on harmful and toxic substances, one could imagine that the judge is evolving [towards] biological diseases. (…) We could have this type of litigation and I know that some lawyers are starting to think about it, ”says Sophie Selusi-Subirats with Ajis.
"If there is a way to dig, this is it," confirms Patrice Adam. But it is still necessary that the judges take the plunge and that this “stress” and its reality, its duration, be established. “The Covid has an extremely fast incubation period of 15 days. One may wonder if the anxiety prejudice is appropriate, ”replies Stéphane Bloch.
Covid-19 as an industrial accident or occupational disease
And what about employees who have been infected or died from Covid? The government wants to make it easier in terms of compensation. Last Monday, he confirmed the “automatic” recognition of Covid-19 as an occupational disease to avoid the usual “complex recognition procedures” with the Primary Health Insurance Fund. However, this route will be reserved for caregivers in health and medico-social establishments as well as non-caregivers (but working face-to-face in these structures) or providing transportation and support for people with Covid-19. Ditto for liberal health professionals.
For non-caregivers, a “single national recognition committee” will be dedicated “to ensure the homogeneity of the processing of requests” and “to facilitate recognition (…) for employees affected by Covid-19 in its severe form”. A way of admitting the experience of those who, alongside caregivers, have also been on the front line. Still it must be demonstrated that the disease was contracted from the workplace ... Not an easy task. If this route makes it possible to succeed, it will in any case then be possible to attack the employer for "inexcusable fault".
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