Construction workers, workers in the transport sector, fishermen, professionals in the transport sector, market vendors… Certain professions are particularly exposed to the drop in temperatures at the start of November. Employers have obligations towards them. In case of non-compliance, a right of withdrawal can be exercised.
“The law establishes a major gateway which defines a general obligation applicable to the law”, explains Yann Decroix, managing lawyer at Cabinet Vincent Segurel. The regulatory framework for refrigeration in the workplace is set by article L4121-1 of the Labor Code which provides that employers must “take the necessary measures to ensure the safety and protect the physical and mental health of workers”.
Is there a minimum temperature threshold?
The law does not mention any threshold below which it would be dangerous to work, or above which measures must be taken. But according to the National Institute for Research and Security (INRS), “vigilance is essential” from the moment the ambient temperature (sheltered from the wind) is below 5°C. “This does not mean that measures should not be taken if it is 8°C. You have to adapt, it's a matter of common sense”, analyzes Yann Decroix.
What specific measures should be taken?
In a press release published last February, the Ministry of Labor recalled the specific measures to be taken to protect employees, who “must take into account the health rules” related to Covid-19. For outdoor professions (in the construction sector) in particular, the activity must be organized according to weather conditions and a suitable break regime must be planned. “Concretely, the employer can set up longer breaks, 45 minutes instead of 20 minutes for example”, explains Yann Decroix. The employer must also set up a heated room with distribution of hot drinks (Article R4534-142-1 of the Labor Code), and provide suitable clothing to fight against the cold, such as gloves, pants, jackets, overtrousers, socks or hats.
For indoor professions, suitable heating and ventilation must be provided (Article R4223-13 of the Labor Code).
How are the measures put in place by companies defined?
“There is a general framework but each profession applies different measures according to the specific risks at their workplace”, continues Yann Decroix . Thus, as soon as the first employee is hired, the employer must list the occupational risks incurred by the workers and the resulting prevention and protection actions in the Single Risk Assessment Document (DUER). The “extreme cold” risk is one of them, as explained in the Labor Code in article R4444-5.
To define the specific measures to be taken in the event of a drop in temperature, the employer must consult the occupational physician and the health, safety and working conditions committee (CHSCT).
What does the company risk if it endangers its employees by making them work in the cold?
“Spot checks” can be undertaken by the labor inspection services to “ensure compliance by employers with their regulatory obligations and a good risk assessment, adapted to the factor “Big cold”, recall the Regional Directorates of Economy, Employment, Labor and Solidarity (DREETS). Thus, in closed premises, if the labor inspectorate finds a lack of heating, it can give formal notice to the company to comply with the standards.
In the event that there is a “serious or imminent danger to the physical integrity of an employee”, labor inspectors can directly initiate a sanction procedure. Specific measures may also be provided for by collective agreements, branch or company agreements.
Can the employee exercise a right of withdrawal?
The employee can exercise his right of withdrawal if he considers that the temperature could harm his life or health (article L4131-1 of the Labor Code). Please note that the employee must prove that his concerns are based on reasonable grounds. “If the temperature is 10 degrees, it is not a serious and imminent danger, and therefore not a legitimate reason”, warns Yann Decroix. Without a legitimate reason, the employer may decide to initiate industrial tribunal proceedings. “On the other hand, if the employee is sent into the cold without gloves or suitable protective measures, the danger is serious and imminent”, adds the lawyer.
Can the employee be compensated if he is absent?
“When you are in an episode of extreme cold that prevents you from arriving on time, it is classified as a case of ‘force majeure’, explains Yann Decroix. He cannot therefore be sanctioned by his employer, according to the site of the service-public administration. Examples of severe weather events include storms, floods, heavy snowfall. In the event of a dispute, the employee must be able to provide proof that it is indeed a case of force majeure (photos, press articles, etc.)
To avoid salary deductions, “employees can use their RTT days”, says Yann Decroix. The company can also offer him to recover his hours of absence. The use of teleworking is also a possibility. “But generally, these decisions are made in the dialogue between the employer and the employee, nuance Yann Decroix. Unless they are already framed by the collective agreement of the company.
