As economic activity continues in the context of the health crisis, the entrepreneur is faced with numerous regulations. The risk of seeing his criminal liability engaged hovers and deserves to be clarified.
WHAT ARE THE COMPANY MANAGER’S OBLIGATIONS IN THE CONTEXT OF THE PANDEMIC ?
Employers have an obligation to protect the physical and mental health of their employees (art. L.4121-1 et seq. of the French Labor Code).
It is bound by the decrees prescribing the necessary measures to deal with the Covid-19 epidemic:
- Mandatory mask wearing
- Social distancing increased to 2 meters
- Appointment of a Covid referent within the company
The requirements are detailed in the ” Protocole national pour assurer la santé et la sécurité des salariés en entreprise” published by the French Ministry of Labor.
To ensure the health and safety of employees, the employer must also :
- Evaluate risks with the participation of the CSE and the occupational health department, and update the company’s risk assessment document (DUER ) (art. L.4121-3 of the French Labor Code), including measures to limit the risk of contamination.
- Use teleworking: the employer must make every effort to promote, when compatible with the nature of the positions held, teleworking of its employees.
MONITORING COMPLIANCE WITH THESE OBLIGATIONS
Compliance with health and safety conditions may be monitored by the labor inspectorate :
- If a breach is found, it can send the employer a formal notice to comply, like the Direccte, when it is a dangerous situation.
- It may draw up a report which will be sent to the public prosecutor.
- In the event of a serious risk of harm to the physical integrity of the employees, it may seize the judicial judge in summary proceedings (art. L.4732-1 of the Labor Code) so that he orders, under penalty, to take all appropriate measures. to put an end to this risk.
The CSE (mandatory in companies with at least 11 employees) can also :
- Alert the employer in the event of a breach being observed under his right to alert (art. L.2312-5 of the Labor Code)
- Refer all complaints and observations relating to the application of legal provisions to the labor inspectorate.
WHAT ARE THE CRIMINAL RISKS FOR THE COMPANY MANAGER ?
- The criminal risk of employee exposure to contamination :
- Penalty for breach of safety obligation: fine of €3 750, applied as many times as the number of employees concerned by the offence (art. L.4741-1 of the French Labour Code).
- Penalty for failing to draw up a DUER: €1,500 fine (art. L.4744-1 of the French Labor Code).
- The offence of endangering the life of others (art. 223-1 of the French Penal Code).
Conditions : prove violation of a particular duty of care or safety imposed by law or regulation ; this duty must be sufficiently precise. This offense seems difficult to retain since the obligation imposed on business leaders to enforce the “barrier gestures”, laid down by the decrees alone, lacks precision. A complaint filed by the CGT and the CFDT against Amazon for endangering the lives of others was thus dismissed, considering that the offense was not sufficiently serious.
- The criminal risk in the event of employee contamination with Covid-19 :
- The offence of unintentional personal injury resulting in a TIW of more than 3 months (art. 222-19 of the French Penal Code) : penalty ranging from 2 years’ imprisonment and a €30,000 fine to 3 years’ imprisonment and a €45,000 fine.
- The offence of manslaughter (art. 221-6 of the French Penal Code) : maximum penalty of 5 years’ imprisonment and €75,000 fine.
Proof of this, however, is difficult to provide : these sanctions require proof of ” imprudence, negligence or failure to comply with an obligation of prudence or safety laid down by law or regulation “ and, above all, a definite causal link between the fault and contamination with the virus. However, it will not be easy to demonstrate that the employee has contracted covid-19 at his workplace because the contamination can result from different factors.
The judge will take into account the nature of the employer’s missions or functions, his skills, the power and the means at his disposal (art. 121-3 of the Criminal Code). It will examine the measures put in place by the company : the absence of recourse to telework (if this was possible on the employee’s workstation), may be highlighted to prove non-compliance with the safety obligation.
- The offence of failing to assist a person in danger (art. 223-6 of the French Penal Code). This requires voluntary abstinence from the employer, which again seems difficult to prove.
To avoid any risk of criminal conviction, the company manager must comply with health measures, and regularly update information and measures within the company, as well as keeping proof of them, in order to prevent any criminal litigation, but also at civil.