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Heat wave management: the employer’s obligations

Inst. DGT, 31 May 2022

An instruction from the DGT of 31 May 2022 on the management of heat waves in 2022 completed the ministerial instruction of 7 May 2021 and the ORSEC guide (Organisation de la Réponse de Sécurité Civile).

From 1st June to September 15, 2022, to limit the risk of occupational accidents related to high heat, employers will have to put in place a series of precautions to protect workers:

  • Take into account and transcribe in the “single risk assessment document” the risks related to thermal environments and adopt preventive measures to ensure the health and safety of employees;
  • Provide employees with drinking and fresh water;
  • Control the proper renewal of the air in the closed rooms, and monitor the temperature of the rooms;
  • Ensure that the wearing of personal protection is compatible with high heat;
  • Provide employees with means of protection against high heat and/or cooling;
  • Escalate any abnormal situation to the labour inspectorate.

In the event of a “red alert” by Météo France, the employer will have to reassess the risks of exposure for each employee daily according to the evolution of the temperature, the nature of the work to be performed, the age and the state of health of the workers.

Current case law: Exemption from the obligation to consult staff representatives in the event of incapacity with impossibility of redeployment

Cass. Ploughshare. 8 June 2022, n°20-22.500

Since the entry into force of the law of 8 August 2016, in the event of incapacity with impossibility of redeployment, the employer is exempted from his obligation to reclassify but it did not specify whether or not he was exempted from his obligation to consult the staff representatives on the impossibility of redeployment. On June 8, the Court of Cassation put an end to the doubt.

From now on, when the occupational physician expressly mentions in his notice of incapacity that any retention of the employee in the job would be seriously detrimental to his health or that the state of health of the employee hinders any reclassification in the job, the employer is not obliged to consult the staff representatives.

This decision will allow employers to proceed with the dismissal without fear that it will be declared without real and serious cause and without risking an order to pay a special indemnity, in case of professional incapacity (C. trav. L1226-15).

Remote medical examination

Decree No. 2022-679, 26 Apr. 2022: OJ, 27 Apr.

The law of 2 August 2021 to strengthen occupational health prevention authorised occupational health professionals responsible for individual monitoring of the worker’s state of health to use, for the exercise of their missions, medical practices or remote care using information and communication technologies (C. trav., art. L. 4624-1).

As of April 28, 2022,  the terms and conditions of this recourse are specified:

  • Examination at the initiative of the health professional or worker;
  • Mandatory consent of the worker;
  • Examination or visit carried out in satisfactory sound and visual conditions and likely to guarantee the confidentiality of the exchanges;
  • Rates applicable to telemedicine procedures or telecare activities.

Undoubtedly “a legacy” of the health crisis, the remote medical examination should make it easier to monitor the state of health of employees. One reservation, however, is that it will be necessary to remain vigilant towards the most vulnerable employees.

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