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15 February 2021

Newsletter – Employment Law – February 2021



  • Health protocol updated by the Ministry of Labour on January 29, 2021.

 National protocol to ensure the Health and Safety of employees in enterprises for responding to the Covid-19 epidemic, updated by the Ministry of Labour on January 29, 2021.

In situations where the use of face masks is mandatory, employees and other persons present in the company must now wear a surgical-type mask or a mask “for the general public” with a filtration rate of more than 90%, according to the company’s health protocol updated by the Ministry of Labour on last January 29th.

In other situations, where the mask cannot be worn, a distance of two metres between each person must be respected.

Regular ventilation in the workplace and public reception areas should also be organised as often as possible. The protocol refers to the recommendation of the High Council of Public Health which, in his suggestion on January 14th, 2021, recommends ventilation for a minimum of a few minutes every hour. Previously, the protocol provided for ventilation for 15 minutes every three hours, if possible.

Finally, to date, the rules concerning remote working remain the same, i.e., remote working remains the principle for all activities that allow it, and the protocol continues to provide for the possibility of returning to the workplace for employees who work 100% at home, up to a maximum of one day a week, when they express the need to do so and with the agreement of their employer.

It should be noted that the labour inspectorate is stepping up its efforts to make remote working the norm in companies and to try to avoid further lockdowns. A DGT instruction of February 3rd, 2021 provides in this respect to multiply and target measures to support employers in the implementation of remote working. It also provides for increased inspections, especially in companies and sectors where remote working is decreasing. 

  • Postponement of certain medical examinations of employees due to Covid -19

Decree n° 2021-56, January 22, 2021

In view of the first wave of the Covid-19 epidemic, Order n°2020-386 of April 1, 2020 and Decree n° 2020-410 of April 8, 2020 had provided for the postponement of certain follow-up medical visits for workers that could not be organised due to the epidemic. Thus, unless the occupational doctor advised otherwise, most of the medical visits that should have taken place between March 12 and August 31, 2020 could have been postponed until December 31, 2020.

Faced with the second wave of the epidemic, Order n° 2020-1502 of December 2, 2020, provided for new possibilities to postpone these visits until April 17, 2022. Decree n°2021-56 of January 22, 2021, issued for the implementation of the order, sets out the terms of this postponement.

Thus, unless there is a risk related to the worker’s state of health or to the position he or she occupies, the occupational doctor may postpone recruitment medical visits and most of the periodic follow-up examinations that should have been carried out before April 17, 2021.

Specifically, under the terms of this order and decree, the medical visits and examinations that may be postponed are as follows:

  • Those for which the deadline resulting from the texts applicable before the entry into force of the Order of April 1, 2020 is before April 17th, 2021;
  • Those that had already been postponed under the Order April 1st, 2020 and which could not be carried out before December 4, 2020, the date of entry into force of the Order of December 2, 2020.

The postponement is possible within the limit of one year, until April 17, 2022. This one-year period is calculated from the deadline resulting from the texts in force before March 12, 2020, the date of the first postponements of visits under Order of April 1, 2020. 

  • Update regarding the indemnity and the allowance of the partial activity scheme

2 FAQ of the Ministry of Labour, February 9, 2021

The Ministry of Labor’s FAQ recently updated, provides for the standardization of the partial activity allowance and the partial activity indemnity as of July 1, 2021. From this date, no distinction will be made depending on the sector of activity at stake, as it is currently the case.




  • Nullity of termination in the context of a mutual termination and a hidden social plan

French Supreme Court, January 6, 2021, n°19-18.549

The Supreme Court decided that the employer’s concealment of the fact that the social plan was being prepared and included the employee’s position was a cause for nullity of the mutually agreed termination, since this withholding of information was a determining factor in the employee’s consent. In this case, the social plan had been presented to the employee representatives two months after the mutually agreed termination was signed.

  • An employee dismissed for serious misconduct may be compensated in case of vexatious circumstances

French Supreme Court, December 16, 2020, n°18-23.966 F-PBI 

In a decision of December 16, 2020, the Supreme Court had the opportunity to reiterate that an employee may obtain damages for vexatious dismissal as compensation for the moral prejudice caused by the circumstances of the termination, even if his dismissal for serious misconduct is justified.

  • Falsely accusing of discrimination can justify disciplinary dismissal

French Supreme Court, January 13,, 2021, n° 19-21.138 

The Supreme Court sets a temperament to the principle according to which an employee who denounces or reports acts of discrimination benefits from disciplinary immunity (Article L. 1132-3 of the French Labour Code). Indeed, in this decision, the Court admitted that a denunciation made in bad faith would cause this immunity to lapse, which, it specified, presupposes that the employee knew the falsity of the facts he or she denounced. It is not enough that the facts denounced are not established. Only untruthful statements, which their author knew to be inaccurate, can lead to disciplinary dismissal.


  • Annual lump sum agreement in days without effect and reimbursement of RTT days by the employee

French Supreme Court, January 6, 2021, n°17-28.234 

When the employer does not ensure the effectiveness of the rules relating to health and safety protection set by the collective bargaining agreement authorising recourse to the annual lump sum agreement in days (a so-called “forfait annuel en jours”), the individual flat-rate agreement concluded with the employee is deprived of effect until the employer complies with the conventional guarantees. In this decision, the Supreme Court decided that if, during the period when the individual agreement is deprived of effect, RTT days were granted to the employee in execution of the agreement, the employee must reimburse them to the employer.


  • The employer may delegate the presidency of the social and economic committee to assigned employee

French Supreme Court, November 25, 2020, n°19-18.681 FS-PB 

The Supreme Court decided in this ruling that an employee assigned to a user company may benefit from a delegation of power from the employer of this company to chair its social and economic committee. The Supreme Court specified that in order to do so, however, it is necessary for the delegatee to have the necessary quality and power to inform and consult the staff representatives, in order to allow the latter’s prerogatives to be effectively exercised. 

  • The opening of negotiations with an employee union delegate is an essential prerequisite for the implementation of e-voting

French Supreme Court, January 13, 2021, n°19-23.533, FS-PRI 

It is only after a loyal but unsuccessful attempt to negotiate a company or group agreement that the employer may, by unilateral decision, provide for the possibility and modalities of electronic voting. Nevertheless, in the absence of employee union delegate in the company, the employer is not obliged to first attempt a derogatory negotiation, says the Supreme Court in this decision. It added that the challenge to the decision to use electronic voting does not fall within the scope of collective bargaining agreements litigation, but rather within the scope of the regularity of the electoral process.




  • Non-renewal of the Macron bonus by the social security financing law for 2021

Law n°2020-1576, December 14, 2020, on the financing social security (LFSS) for 2021 

The exceptional purchasing power bonus, also known as the “Macron” bonus, is a bonus exempt from social security contributions and exempt from taxation under certain conditions. This bonus was introduced at the end of 2018, during the yellow vests crisis. In the spring of 2020, the finance minister encouraged companies to take advantage of this scheme to reward employees who came to work during the first lockdown.

However, as it was not included in the 2021 Social Security Financing Law, this bonus was not renewed for 2021. According to the daily newspaper “Les Echos”, which interviewed the Minister of Finances, the government wants to give priority to long-term value-sharing plans.


Newsletter – Employment Law – February 2021