Newsletter No.187 - July 2024

A decree of 5 July 2024, effective from 7 July 2024, specifies the terms of the follow-up examination carried out by the employer during an employee’s sick leave.

Firstly, the employee must inform the employer of his place of rest, if it is different from his home, at the beginning of the sick leave, and of any subsequent change of location. In the event of sick leave with a “free movement” clause, the employee must also inform the employer of the times available for the follow-up examination.

Secondly, concerning the follow-up examination itself, it must be carried out by a doctor appointed by the employer. It can take place at any time during the sick leave, either at the employee’s home (or any other location communicated to the employer), or at the doctor’s office. The doctor informs the employer whether or not the sick leave is justified or if the follow-up examination could not be carried out due to the employee’s absence or refusal.

Finally, regarding the outcome of the follow-up examination, if the sick leave is deemed unjustified or if the follow-up examination could not take place, the doctor must send a report to the social security fund within 48 hours. The social security fund may then suspend daily allowances or request a new examination of the employee’s situation. If the sick leave is confirmed as unjustified after this examination, the employer may stop paying supplementary benefits (Decree No. 2024-692 dated 5 July 2024, Official Journal of 6 July 2024).

In a decision dated 26 June 2024, the French Supreme Court (Cour de Cassation) ruled that the employee’s action based on the employer’s failure to fulfill their obligation to have their staff join a supplementary employee benefit scheme and to pay the resulting contributions is subject to a five-year limitation period, pursuant to Article 2224 of the Civil Code. Thus, any action by an employee based on this ground will be subject to the five-year limitation period, which, as a reminder, begins running from the day the employee knew or should have known the facts allowing them to bring said action (Cass. Soc, 26 June 2024, No. 22-17.240).

In a decision dated 4 July 2024, the Paris Court of Appeal rejected the request of an employee who requested the communication of an internal investigation report, referring to Article 145 of the Code of Civil Procedure, to establish proof of facts of sexual humiliation at work. Indeed, it is up to the judge to verify whether such communication is necessary, proportionate and essential to the exercise of the right to proof, while considering the privacy of other employees. Thus, the Court of Appeal ruled that this communication was not necessary to exercise the employee’s right to proof, since she already had sufficient evidence to demonstrate the employer’s failure to meet their safety obligation (CA Paris, 4 July 2024, No. RG24/00334).

The decree of 29 June 2024 focuses on the conditions for filing and checking the PPVE agreement. The filing must be made on the “Téléaccords” platform, according to the usual conditions for filing collective agreements. Checking the agreement is the responsibility of the labor administration, which forwards the documents to the URSSAF; the latter has a period of three months to request modifications in the event of clauses that are contrary to the law. After filing the agreement, a separate sheet from the pay slip must be given to each employee concerned. This sheet must indicate the reference amount, the modulation criteria, the valuation rules, as well as the conditions for awarding the bonus. When the latter is paid, an additional form must detail its amount, the CSG/CRDS deductions and the allocation options to an employee savings or retirement plan. Employees can choose to allocate all or part of their bonus to an employee savings or retirement plan within 15 days of receiving the information form. The allocated amounts benefit from an income tax exemption within certain limits.

In the event of an employee leaving before the bonus is paid, the employer must collect an address at which the employee can be informed of their rights. If the employee cannot be reached at this address, the sums are held at their disposal for one year, then transferred to the Caisse des Dépôts et Consignations, where they can be claimed for 30 years.

Finally, the decree modifies the annual ceiling applicable to the unilateral payment by the employer, by aligning it with the exemption ceiling for the value sharing bonus.

As for the decree of 5 July 2024, it introduces three new cases of early release of employee savings: allocation to energy renovation work on the main residence, purchase of a clean vehicle, and activity as a caregiver.

It also specifies that the workforce thresholds of 11 employees, concerning the implementation of an experimental value sharing system, and 50 employees, concerning the exemption from income tax, must be calculated according to the terms of Article L.130-1, I of the Social Security Code.

Moreover, it requires that incentive or profit-sharing agreements mention the terms of restitution of advances in the event of non-allocation to an employee savings plan. The express agreement of the employee is required for the payment of an advance.

Finally, it supplements the provisions of the previous decree regarding the ceilings applicable to the unilateral employer contribution intended to promote employee shareholding. In this respect, it amends Article R.3332-8 of the Labor Code to add that if the employer makes a unilateral payment to promote employee shareholding, the total annual ceiling for contributions to the PEE is increased to 16% of the PASS. In the absence of a unilateral payment, the overall ceiling remains set at 8% of the PASS (Decree No. 2024-644 dated 29 June 2024, Official Journal of 30 June 2024 ; Decree No. 2024-690 dated 5 July 2024, Official Journal of 6 July 2024).

In a decision dated 10 July 2024, the Court of Cassation ruled that the expert specializing in health, safety, and working conditions, appointed by the CSE in the event of a serious risk identified in the company, is not required to obtain prior consent from the employer to interview employees. Only the prior consent of the employees themselves is necessary. Indeed, the expert appointed for serious risk must be able to interview any employees of their choice to effectively fulfill their mission, without fearing a potential refusal from the employer. However, the interviews planned by the expert must always meet a requirement of necessity with regard to their mission, which the judge will assess in case of a dispute by the employer (Cass. Soc, 10 July 2024, No. 22-21.082).

EMPLOYER’S FOLLOW-UP EXAMINATION: Clarifications on the terms of the follow-up examination.

LIMITATION PERIOD: The employee’s action for failure to join the employee benefit scheme is subject to a five-year limitation period.

RIGHT TO PROOF: Refusal to communicate an internal investigation report.

COMPANY VALUATION SHARING PLAN (PPVE): Setting the terms for implementing the PPVE by decrees of June 29 and 5 July 2024.

CSE EXPERTISE: The CSE expert does not need the employer’s consent to interview employees.