Partner, Sylvie Gallage-Alwis discusses the four major risks for companies planning to reopen, in light of the coronavirus pandemic, in Law360.
A version of this article was also published in The Barrister, 7 May 2020, and can be found here.
Like the majority of countries in the world, France has ordered a general lockdown and is extending it, week after week. This lockdown has affected a significant number of businesses, considered as not essential for the population. The result is that one out of four workers in France is currently on partial or total unemployment.
While the health and safety of the population is obviously a priority, the supply of foodstuffs for the population and the continuation of the industries and services that are essential for our society to keep moving is also necessary. This is why, while the government is asking the population to stay home, it is also asking employees of various industries to continue working.
Furthermore, since April 6, the French government, like others in the world, have authorised some nonessential businesses to reopen in order to get the economy of the country starting again.
The state acknowledges the fact that there will be COVID-19 litigation against companies.
This request from the government for the essential businesses and the recommendation for the nonessential ones to open is placing these companies in a difficult situation as they are exposing themselves to a high risk of future litigation.
Indeed, one would have thought that the state would have indicated that it would bear all liability related to the contamination of the employees who are still working during this period, as their employers are participating in maintaining the country’s supplies and economy, providing these companies with guarantees relating to any future litigation.
This is not the case. On the contrary, the government has imposed on employers a certain number of measures to protect their employees, such as:
- Assess the risks taken at the workplace that cannot be avoided according to the nature of the work to be carried out;
- Determine, based on this assessment, the most relevant preventive measures;
- Carry out this task by involving the staff representatives;
- Contact, when possible, the occupational medicine service, whose mission is to advise employers, workers and their representatives and, in this respect, recommend any useful information on the efficient protective measures, the implementation of the barrier gestures; and
- Comply with and enforce the barrier gestures recommended by the health authorities.
More importantly, the government has specified that “the employer’s liability for its non-compliance with this specific obligation to prevent occupational risks can be sought” and that “regardless of the situation, complying with this specific obligation or, on the contrary, not complying with it, are not presumed (except in very rare cases) and must be proven, in the event of a dispute.”
The only positive point is that the state indicates that “it is not the employer’s duty to guarantee the absence of exposure of its employees to risks but to avoid them as much as possible” and that the analysis will be carried out on a case-by-case basis. However, this is stated at the same time as a reminder that the employee will be able to take legal action on the ground of gross negligence should he/she develop the disease.
Sick employees may file gross negligence claims.
Seeking liability on the ground of gross negligence requires that two criteria be proven: the awareness of the danger by the employer and the absence of protective measures required to guarantee the safety of the employee, with courts that tend to reverse the burden of proof against the company.
The criterion relating to the awareness of the danger will most likely not give rise to any debate. The classification as crisis, and even health war, is sufficient to demonstrate the general awareness of the danger. The confinement and concept of social distancing will also be used to demonstrate that bringing employees together may expose them to a risk. The €1,000 premium that the government is refusing to call a risk premium will also most likely be interpreted as the employers’ recognition of their awareness of the risk.
With respect to the implemented protective measures, it is useful for the government to highlight that the mere development of the disease is not sufficient to lead to liability. However, this is merely a reminder of case law. Since the Air France decision of Nov. 25, 2015, the French Supreme Court considers that employers cannot be condemned automatically and that their breach must be demonstrated even if the employee develops a disease or is injured.
While this reversal of case law was expected by businesses, who were sentenced regardless of their behaviour, the courts are still reluctant to apply it, after more than 15 years of case law in favour of employees.
What will happen when they have to examine the first gross negligence cases relating to Covid-19? It would be advisable that the case-by-case analysis really be applied, and that economic necessity finally be taken into account by social courts that often disregard the economic consequences of their decisions. One can also wonder how the courts will interpret the efficiency of the measures taken in a context where scientific and medical data evolve on a nearly daily basis and where there is an established shortage of protective equipment.
Some companies do openly realise the risk and are asking their employees to sign a document whereby they withdraw their right to file any COVID-19-related claim in the future. Many trade unions are criticising this step which will undoubtedly be at the origin of case law to determine whether or not this withdrawal is valid. Trade unions of some companies have also announced in the media that they will file gross negligence claims if an employee develops COVID-19.
Employees who fear sickness may file anxiety claims.
One can also fear cases relating to the anxiety of developing COVID-19, in a similar way as the litigation that arose relating to the exposure to asbestos. Pursuant to decisions dated April 5, 2019, and Sept. 11, 2019, the Plenary Assembly of the French Supreme Court extended case law that was initially limited to workers potentially exposed to asbestos to any worker exposed to a harmful product or substance.
Here, all employees who did not develop COVID-19 but fear to do so could sue. The same questions as the ones above will arise. The question of knowing whether an employer providing home-made masks or overalls will be sentenced on the ground of the breach of the regulation in a time of national shortage, can also be added.
Employees may file criminal complaints for manslaughter.
Some trade unions have already threatened to file complaints on the ground of endangerment and some already have, like the employees of Amazon.com Inc. Again, it is necessary to take into account a context where the State is asking companies to continue their activity, while not enabling the general availability of protective equipment.
Consider third-party claims.
Besides the actions of employees, companies also risk potential actions from third parties. This might be the case of a consumer who would act against a store who, according to the consumer, would not provide adequate protection, or the employees of transport or logistics companies or distributors in contact with the employees of the company in question.
For the new businesses exceptionally manufacturing products intended for the health and safety of the population (masks, antibacterial gel, overalls, ventilators) in order to help France overcome the shortage, there may be actions on the ground of product liability. Once again, will the context in which the manufacture occurred really be taken into account by the courts?
An analysis of the case law relating to force majeure in the event of epidemics like Ebola, the Dengue fever, the H1N1 flu or the Chikungunya, does not provide much hope. Indeed, the courts have either refused to take into account the concept of force majeure or denied the causal link between the pandemic and the nonperformance claimed.
While the solidarity of businesses and of their employees ought to be hailed, it is essential that these businesses truly understand the consequences of their decision to remain operational during this unprecedented period. This unprecedented nature must not be overestimated because the courts have already sentenced many companies who had used legal products, with the authorisation of the state and sometimes even encouraged to do so by it.
As a result, businesses whose employees are currently working need to gather evidence of the measures taken to protect their employees, using the services of a bailiff if necessary, and to adapt the said measures following each declaration of the government and scientists. An analysis of the future risks of litigation will also have to be carried out and taken into account when making decisions relating to the upcoming months.