NewsletterNewsletter No. 164 – August 2022

INTERNAL RULES: Need to update the internal rules to include a reminder of the existence of the whistle-blower protection system.

The Law No. 2022-401 of 21 March 2022 aimed at improving the protection of whistle-blowers (Official Journal 22 March) has modified the provisions of the « Sapin 2 » law (Law 2016-1691 of 9 December 2016). As a reminder, it extended the scope of the beneficiaries of the whistle-blower protective status, simplified the procedures for alerts and improved the protection granted to whistle-blowers, in particular employees. It also imposed the obligation for employers to state as a reminder, in the internal regulations, the existence of the protection system for whistle-blowers, in order to ensure that employees are informed in this respect (art. L. 1321-2 of the Labor Code). This provision comes into force on 1 September 2022.

COVID-19: End of the exceptional regimes created to fight against the Covid-19 epidemic.

The Law No. 2022-1089 of 30 July 2022 putting an end to the exception regimes created to fight against the epidemic related to Covid-19 (Official Journal of 31 July) repeals the exceptional measures to fight against Covid-19 (regime of the state of health emergency and regime of the health crisis management), establishes a health protection mechanism at the borders (if a new, very dangerous variant was to appear) and institutes a procedure allowing unvaccinated personnel to be integrated back into contact with fragile persons as soon as the Haute Autorité de Santé (i.e., the French Health Authority), which Parliament shall be able to refer to, will have noted that the vaccination obligation shall no longer be medically justified.

COVID-19: Employers must ensure the safe return of vulnerable employees.

Given the circulation of the virus which remains at a high level and in the face of the fear of a new wave of the pandemic in the fall, the Ministry of Employment has updated its “Reference guide on Covid-19 contamination risk prevention measures“ on August 2022.

Other than the implementation of reinforced measures of protection, the return to the workplace of employees who are particularly vulnerable to Covid-19 shall be the subject of a dialogue with the employer. The reference guide, in addition, again recommends that employees wear a mask in places presenting a significant risk of contagion.

UNFIT PROTECTED EMPLOYEE: Available interim positions must be offered in matters of redeployment.

In the event a protected employee is dismissed for unfitness for work, the protective rules instituted in favor of staff representatives shall be combined with the provisions of articles L. 1226-2 and L. 1226-10 of the Labor Code providing for the redeployment of an employee who has become unfit for his job. The points checked by the administration in the event of a request for authorization of dismissal obviously includes the control of these redeployment efforts.

In a decision of 19 July 2022, the Council of State provides an unprecedented precision in terms of redeployment to a temporary position: “in the event that the employer uses temporary work under conditions such that they reveal the existence of one or more available positions in the company, regardless of whether they are likely to be the subject of permanent or fixed-term contracts, it is up to him to offer these positions to the employee, provided that they are appropriate to his capacities”. The French Administrative Supreme Court (Conseil d’Etat) considers, however, that the positions in question in this case do not meet the necessary conditions to be qualified as redeployment positions. Indeed, these are interim contracts “concluded for very short periods, from two to three days, in order to compensate for occasional absences of employees or to cope with seasonal peaks of activity and presenting a random nature”. (CE 19 July 2022, 4^th and 1^st divisions together, 438076).

SOCIAL POLICY: Entry into force of the “purchasing power package” provided for by the government to fight against inflation.

Validated by the Constitutional Council on 12 August, the “purchasing power” and amending finance laws for 2022 were published in the official journal on 17 August 2022. The law on emergency measures for the protection of purchasing power perpetuates the exceptional purchasing power bonus (Pepa or “Macron bonus”), renamed “value sharing bonus”, while adapting it. This bonus is now permanently exempt from all social contributions of legal or conventional origin payable by the employee or the employer within the limit of certain caps (3,000 euros or even 6,000 euros if a voluntary profit-sharing agreement has been concluded). In addition, the text aims at facilitating the implementation of voluntary profit-sharing, particularly in SMEs, and provides for an exceptional case of early release of employee savings, without tax deductions, within the limit of 10,000 euros and before 31 December 2022 (Law No. 2022-1158 of 16 August 2022 on emergency measures for the protection of purchasing power, Official Journal of 17 August).

For its part, the amending finance law for 2022 raises the exemption limit for the employer’s contribution to the acquisition of lunch vouchers on 1 September 2022. Lunch vouchers may also be used temporarily (until 31 December 2023) to pay for a food product in whole or in part, whether or not it is directly edible.

The text also raises the income tax exemption cap for extra and additional hours to 7,500 euros and organizes the monetization of RTT days off until 2025. Article 5 of the text provides for the possibility for employees to waive their right to all or part of their RTT days off acquired from 1 January 2022 to 31 December 2025, at their request and in agreement with their employer. The sums resulting from this monetization are subject to the same tax and social regime as extra hours (tax exemption within the limit of the 7,500 euros cap) (Law No. 2022-1157 of 16 August 2022 amending finance for 2022 (Official Journal of 17 August).

RECRUITMENT: Extension of the list of information to be transmitted to the employee upon recruitment.

The directive 2019/1152 of 20 June 2019 relating to transparent and expectable working conditions in the European Union (Official Journal of the European Union L186/105 of 11 July 2019) repealed a previous directive 91/533 of 14 October 1991 which notably set the information to be communicated by the employer to new employees upon their hiring. The Member States of the European Union had a period of 3 years to take the necessary transposition measures. In the absence of texts published in this respect in French law, the content of the directive has been directly applicable since 1 August 2022 to employees hired since that date. We note in particular an obligation extended to trainees and apprentices, more complete information and a reduced deadline for the communication of this information.