Newsletter June 2024

Reminder of compulsory membership of the Occupational Health Service (Médecine du Travail)

Occupational medicine is a key player in employee well-being. It takes action to protect workers’ health.

All employees are subject to medical monitoring, whether they are on permanent or fixed-term contracts, temporary workers or apprentices. However, trainees in the workplace are not subject to this obligation.

1/ Missions carried out

The occupational physician will carry out various tasks for which the employer is civilly liable. These include, in particular:

Information and Prevention Visit (VIP)

All new employees must undergo an Information and Prevention Visit (VIP) within 3 months of taking up their duties. For certain special cases, such as night workers or employees under 18, this visit must be carried out before the employee is assigned to the position.

Special cases and renewals :

• Additional examinations : The occupational health physician may request specialized examinations, paid for by the employer.
• Apprentices: The visit must be carried out within 2 months of hiring.
• Renewal: A new visit must be made every 5 years, or every 3 years for disabled workers, disability pensioners or night workers. These deadlines may be adjusted by the occupational physician.

Trade-in visit

The occupational physician can also intervene when an employee returns to work. In principle, this is not required. However, it becomes mandatory if the employee has been off work for any of the following reasons:

• Non-occupational accident or illness resulting in at least 60 days’ absence from work;
• Work-related accident resulting in at least 30 days’ absence from work ;
• Occupational illness ;
• Maternity leave.

This visit must be carried out within 8 calendar days of returning to work.

Mid-career tour

Employees will benefit from a mid-career medical check-up to verify the suitability of their workstation and their state of health. It will be organized jointly or independently by a set deadline or during the calendar year of their 45th birthday.

2/ Various penalties

Civil liability
Employees may claim damages if they have suffered loss because of failing to comply with their obligation to join the scheme. In particular, if the employee is the victim of an accident at work or an occupational disease, the employer may be held liable for inexcusable fault.

Criminal liability

• Failure to comply with the obligation to join, as well as other offences relating to occupational medicine, carries a fine of €1,500, with a maximum of €3,750, and four months’ imprisonment in the event of a repeat offence within three years.
• Failure to comply with health and safety rules imposed by law or regulation constitutes a criminal offence which, in the event of a workplace accident or dangerous situation, enables the employer or its directors to be prosecuted for serious offences such as manslaughter, unintentional assault and battery, or endangering others.
• Failure to comply with the occupational physician’s recommendations may result in the employer being held criminally liable in the event of a workplace accident or occupational illness.

Seasonal employment contracts

Seasonal employment contracts are used by employers, mainly in the agriculture and tourism sectors, for annual repetitive tasks in line with the seasons or collective lifestyles.

1/ Rules for employers

1. Mandatory written contract: The contract must specify the reason for hiring, the position to be filled and the length of the trial period. It must be given to the employee within 2 working days of hiring.

2. Duration: Can be open-ended (with a minimum duration) or fixed-term. It may not exceed 8 months per year (6 months for foreign workers). A fixed-term contract may be renewed twice within this limit.

3. End-of-contract indemnity: Not due unless otherwise agreed.

2/ Rights of seasonal workers

1. Calculation of seniority: Sum of all seasonal contract periods with the same employer, even if interrupted.

2. Renewal clause: Possible by agreement, collective agreement or in the employment contract itself.

3. Right to renewal: In industries where seasonal employment is common, a worker who has completed 2 consecutive seasons is entitled to renewal of his or her contract if a compatible job is available. The employer must inform the employee of this right, ideally by registered letter with acknowledgement of receipt.

These rules govern the way in which employers can use seasonal workers, ensuring specific protections and rights for employees. This type of contract can represent a definite advantage, provided the legal conditions are respected.

What data can be collected during recruitment?

At the recruitment stage, the employer is authorized to collect very little personal data on a candidate. It is only when the successful candidate is hired that the employer can collect additional data to fulfill its legal obligations.

Following a complaint against an employer who was collecting a large amount of personal data from candidates during recruitment, including place of birth, nationality, marital status and previous remuneration, the French Data Protection Authority (CNIL) has issued a reminder that, in the context of recruitment, the principle of minimization should lead the employer (or the recruiter appointed by the employer) to collect only that data which has a direct and necessary link with the job being offered or with the assessment of professional aptitudes.

Social affair of the month

A human resources (HR) director was dismissed for gross misconduct for concealing from his employer a romantic relationship with a company union representative. The French Supreme Court upheld the dismissal, ruling that the employee had breached his duty of loyalty.

Key points:

1. Employee’s role: As HR Director, he had major responsibilities, including human resources management, health and safety, work organization and chairing employee representative bodies.

2. Concealed relationship: The employee had been in a romantic relationship for several years with a female employee who held union mandates and was involved in strikes, protests against downsizing plans and meetings on sensitive issues.

3. Reason for dismissal: The Court considered that the relationship was linked to the employee’s professional duties and could affect their proper exercise, thus constituting a breach of the duty of loyalty.

Conclusion

The fact of concealing this romantic relationship from the employer was deemed a serious breach of his professional obligations, justifying dismissal for gross misconduct.