Occupational health law, any new obligations for the employer?

Applicable since March 31, 2022, French law n°2021-1018 of August 2, 2021, supplemented by questions and answers from the Ministry of Labour, Full Employment and Integration, strengthens the prevention of occupational risks and medical monitoring of employees while extending the definition of sexual harassment, in the Labour Code, to several behaviors with sexist or sexual connotations coming from a person or a group, concerted or not.

The employer must therefore update the internal regulations, which must include updated provisions on moral/sexual harassment and sexist behaviour. The employer must also ensure that it meets its safety obligation and continue to take the necessary measures to protect the physical and mental health of its employees.

With regard to risk prevention, the employer is required to assess the risks to which the worker is exposed as a result of the organization of his or her work, in association with the CSE, the occupational health referents and the occupational health and prevention services. In this line, French law requires to facilitate the traceability of the single document of evaluation of professional risks (DUERP). The successive versions of the DUERP will now have to be kept for 40 years on a dematerialized portal and the list of people who can access it will be extended. It should be noted that the CSE must now be consulted on the DUERP and its updates. According to the DUERP’s contributions, in a company with more than 50 employees, the employer will have to plan an annual risk prevention program adapted to the risks highlighted by this document.

The third subject addressed by this law is the medical follow-up of employees. By adapting existing medical check-ups and creating new ones, the idea is to allow for a smooth reintegration of the employee into his or her job or into a new position. Some preventive visits will make it possible to fight against the risks of disinsertion and to ensure that each employee is in his or her place in the company, that he or she is not overworked or overexposed to risks. It is with this in mind that the law creates a mid-career check-up, which is set out in article L 4624-2-2 of the French Labour Code. The employer will have to organize, at the initiative of the Occupational Health and Prevention Service (SPST), the employee or himself, a medical check-up for each employee reaching the age of 45 (or at another deadline set by branch agreement) or at the same time as any other medical check-up scheduled within 2 years before this deadline. During this visit, the occupational physician must verify the suitability of the employee’s position and state of health, taking into account exposure to risks. He or she will raise awareness of the challenges of aging and, following this visit, may request that the employee’s workstation or working hours be adjusted if necessary. The second new feature as of March 31, 2022 is the liaison visit, defined in article L 1226-1-3 of the French Labour Code. After a sick leave of at least 30 continuous or discontinuous days, the employee will be able to meet with his or her employer, remotely or in person, in connection with the SPST. This liaison meeting, organized at the request of the employee or the employer, will make it possible to consider the return to work under the best conditions to fight against the loss of employment, while informing the employee of his rights. It should be noted that the employer must inform the employee that he/she can request this service. Finally, a post-exposure visit, defined in article L 4624-2-1 of the French Labour Code, is provided for as soon as an employee who was specifically exposed to a risk stops being exposed to this risk before the end of his career. The employer must inform the Occupational Health and Safety Service of the cessation of exposure to a health risk justifying in-depth monitoring of the employee’s departure or retirement. The visit, if the SPST considers it necessary, is carried out with the occupational physician who analyzes the exposure to risks and gives the employee a report, which the physician will also place in the employee’s medical file for better follow-up. Post-exposure surveillance may also be set up if necessary.

The law on health at work also modifies the visits already in place within the company, making the pre-resumption visit earlier and the resumption visit reserved for the most risky cases. Indeed, the pre-resumption visit, referred to in article L 4624-2-4 of the French Labour Code, reserved for employees who have been off work for more than 3 months, becomes possible for all employees who have been off work for more than 30 continuous or discontinuous days. This pre-resumption visit may lead to a modification of the workstation. The resumption visit, referred to in article L 4624-2-3 of the French Labour Code, is now reserved for long sick leave, at least for non-work-related sick leave, and has been extended from more than 30 days to at least 60 days. The 30-day minimum remains unchanged for sick leaves due to an occupational disease or an accident at work.

The rules applicable to the information and prevention medical visit and to periodic medical visits have not changed.

In addition, the supervised trial, which already existed, is now regulated: this system, managed by the health insurance system, allows employees to request a test of their ability to return to their former position or to a new position. The supervised trial is subject to the opinion of the occupational physician, who judges if the procedure is useful.

Lastly, the Convention de Rééducation Professionnelle en Entreprise (CRPE), initially reserved for disabled workers, will be accessible, as of March 31, 2022, to disabled workers and to all employees declared unfit or at risk of being unfit.

Through this essential text, the employer certainly has new obligations, but the law on health at work will offer him a framed and organized help. Thus, we can underline the change of name of the occupational health services into “prevention and occupational health services” (SPST) supporting the preventive role of the organization and allowing a clear understanding of the objectives. The aim is to offer transparency of the tools for protecting the health of employees in the company.