Covid-19 coronavirus: France - Criminal liability of the company and its directors in the event of infection of an employee in the workplace

Directors who wish to reopen their companies will have to take a number of measures to ensure the safety of employees and avoid liability, including criminal liability, in the event of contamination of one of them in the workplace.

In this regard, the Ministry of Labour recommends that employers refer to the professions advice sheets and guides produced by the Administration to prevent the circulation of the virus in the workplace. These sheets, divided by sector of activity, detail the general measures to be applied but must be adapted on a case-by-case basis. Depending on the size, type of establishment, nature of the activity, whether or not the public is welcomed, the risk assessment will vary greatly.

It should be noted that the Ministry considers that strict compliance with the instructions issued by the health authorities should make it possible to exclude the criminal liability of companies, directors and corporate officers, subject to the sovereign discretion of judges.

Nevertheless, any criminal risk does not seem to be ruled out. That is why the Senate voted an amendment concerning the mitigation of criminal liability of elected officials, civil servants and business leaders for decisions taken during a state of health emergency. Admittedly, the National Assembly did not adopt it and merely pointed it out, by referring to the need to assess the responsibility of each person "in the crisis situation which justified the state of health emergency", that any analysis of the criminal risk must be carried out in concreto, i.e taking into account the fact that the employer merely applies measures and recommendations decided by others (government and parliament). However, the lively debates surrounding the Senate amendment reflect the need to review precisely the risks incurred in respect of unintentional offences under the Criminal Code and breaches of the health and safety rules laid down in the Labour Code in connection with the resumption of activity.

In this context, the purpose of this article is to specify the conditions under which the criminal liability of companies and directors could be engaged and to provide practical advice on the measures to be implemented to enable employees to resume their activity with serenity. A Question/Answer punctuates the analysis with concrete examples.