Some will have to find solutions to keep their children out of school. Others will have to build a small office area at home. With the amplification of the coronavirus epidemic in France, the daily lives of millions of employees are upset.
But what about those who do not have access to telework, do not have children to care for, but feel they are in danger of contamination? Can they exercise their right of withdrawal legitimately? We analyzed the situation with two lawyers specializing in labor law.
Who are the employees concerned?
Those "whose employer would refuse telework when possible", and, in cases where this is effectively impossible, those whose "employer would not apply the recommendations which are made by the Ministry of Health", summarizes Me Jérémie Aharfi, who specializes in labor law in Toulouse. "Someone who would be in contact with third parties, the public, no water point at his workplace to be able to wash his hands with soap, we can legitimately think that there is a right of withdrawal" , he continues.
Be careful however: "The mere fact of welcoming the public or being in contact with customers, such as reception, does not justify a right of withdrawal," added the lawyer. The employee must be “in serious and imminent danger” at his workplace.
What is the process for requesting it?
You have to assess the conditions under which your job puts you at risk. "Your fears will not be enough," warns lawyer Eric Rocheblave. “A fear is subjective, it is sometimes unreasonable. The text says it: it must be for a reasonable reason ”, recalls the specialist in labor law, based in Montpellier.
The right of withdrawal applies in the case of a “serious and imminent danger”, recalls for his part Jérémie Aharfi. "Imminent, that means that it is very brutal and in an ultra close time. Serious, this means that if the employee remained at his post he was going to have a work accident, an illness which could be fatal or temporary permanent or prolonged incapacity ”.
If you think you meet these conditions, notify your employer. "There is no formality: it can be verbal or in writing," says Eric Rocheblave. Orally with a witness, by SMS, e-mail ... The format is free, even if it is better to have a record. "In the event of litigation, it is true that proof of the request will be required," added the specialist.
What about compensation?
Yes, explains Jérémie Aharfi. "In the context of a right of withdrawal that would be justified (that is to say in the case where your employer does not dispute and does not consider this as a abandonment of post, Editor's note), the employee is paid normally. »Small clarification: your days of withdrawal cannot be deducted from your paid holidays.
Can the employer object?
In reality, he doesn't really have a say. "The right to alert is not a request for authorization," says Jérémie Aharfi.
It is therefore possible to notify him and leave his post despite his disagreement. The legitimacy of this withdrawal is judged in fact a posteriori, if the employer judges this right of withdrawal to be illegitimate. In this case, he “considers that the employee has abandoned his position and is continuing it,” adds Eric Rocheblave. "He can do it via a warning, withholding of wages, or even a dismissal". It is then up to the employee to contest by referring to a prud'homal judge, who "appreciates the legitimacy of the right of withdrawal or not", continues the specialist in labor law. The long procedure can last up to a year.
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While several ministers have said in recent weeks that the right of withdrawal was not justified, Eric Rocheblave insists: "It is not for a minister or the president of the republic to assess whether an employee is in a situation right of withdrawal, "says the lawyer. "It is not up to a union to say either, it is up to the prud'homal judge to decide in the event of litigation," he continues.
