The two recent French judicial decisions involving e-commerce giant Amazon are important for every employer doing business in France—not just for online retailers.

The two decisions, issued on 14 April and 24 April, were a set of preliminary injunctions ordering Amazon to cease the majority of its direct sales in France until such time as it implements adequate, legally compliant health and safety measures in its warehouses to mitigate the risk that employees contract COVID-19. On April 14, the trial court of Nanterre ordered Amazon to restrict its sales to limited categories of products, threatening hefty fines in case of non-compliance. Amazon appealed, and on 24 April, the Court of Appeals of Versailles largely affirmed the trial court’s order, slightly modifying the categories of products that Amazon can sell and decreasing the financial penalties the company faces from 1 million Euros per violation to 100,000 Euros per violation. As a result of these injunctions, Amazon’s French warehouse operations have been shut down since 14 April.

As employers in France resume their business activities and welcome employees and customers back to their premises, they should keep in mind these 10 key takeaways from the Amazon decisions.

1.      Update your health and safety protocols to take into account COVID-19 related risks.

All French employers have an obligation to regularly evaluate risks to employee health and safety in the workplace and to take measures to reduce those risks to the extent possible (C. trav. art. L. 4121-1 through L. 4121-5). This health and safety risk assessment must be enshrined in a document known as a document unique d’évaluation des risques or “DUER”, which must be regularly updated as new data comes to light. As the Amazon cases highlight, companies are required to work through the health and safety risks presented by the COVID-19 epidemic, as well as the different measures that can be taken to reduce or eliminate those risks, including telework, reconfiguring work spaces, providing employees with masks, gloves, or other protective material, allowing staggered shifts, etc. Because Amazon’s risk assessment was deficient (more on this below), the courts ordered the company to drastically reduce its business activities in order to protect employee health. Conducting a robust, updated risk assessment is therefore crucial.

2.      Keep abreast of government recommendations, but don’t stop there.

A good starting place for evaluating and reducing the risks related to COVID-19 are the rules and guidelines published by government authorities, and in particular the French Ministry of Labour. That said, an employer cannot simply go through the motions, implementing government recommendations unthinkingly. Amazon, for example, had adopted a variety of government-recommended safety measures. It had, for instance, provided hand sanitizer to employees, reconfigured seating in employee lounges to ensure adequate distance between individuals, increased the frequency of cleaning, and offered regular temperature checks to employees. Nevertheless, the courts found that Amazon’s safety protocols were deficient: The company continued, for example, to require its employees to enter warehouses using turn style gates, which were a potential disease vector, and had not taken concrete steps to address risks of infection due to the handling of packages. As these decisions show, each company will have to conduct a bespoke risk analysis that takes into account the specific features of the company’s physical environment and work processes.

3.      Take mental health risks seriously.

The Amazon decisions also highlight that an employer’s duty to limit employee health risks applies to mental as well as physical health: The Versailles Court of Appeals affirmed the injunction against Amazon in part because the company’s health and safety risk assessment failed to include an analysis of risks to employees’ mental health due to COVID-19 in the workplace. During these challenging times, employees can find themselves under additional stress as they juggle work, health concerns, elder or child care, and other issues caused by the pandemic, in addition to fears that could arise due to the risk of contracting COVID-19 at work. The Amazon judgments remind us that companies must consider COVID-19 related psychosocial risks in their DUERs.

4.      Consult your employee representatives.

In ordering an injunction against Amazon, both the Nanterre trial court and the Versailles Court of Appeals relied heavily on the fact that the company had not involved elected employee representatives in the design and implementation of COVID-19 related health and safety measures. The courts held that consultation with employee representatives (members of the Comité social et économique) is required. Merely informing employee representatives of the health and safety decisions already taken is not sufficient.

Of course, consulting with employee representatives on changes to health and safety protocols can be particularly challenging when decisions must be taken quickly, such as in response to a rapidly evolving epidemic. It can also be challenging where employees or their representatives have taken hard-line positions, such as insisting that all operations cease. (This was the case in the Amazon warehouses.) As always, management should seek to foster regular dialog with employees in order to maintain an open and cooperative relationship, so that decision-making is as smooth as possible. In case of an impasse, companies should document efforts made to involve employee representatives in decision-making processes.

5.      Inform, inform, inform!

In addition to working with employee representatives to design COVID related safety protocols, an employer has the duty to regularly inform all employees of these protocols. Employees must also receive training, as appropriate, on their implementation. The Versailles Court of Appeals emphasised that information and training should be tailored to each job position, as a one-size-fits-all approach may not work for employees in different job functions.

6.      Large companies can continue to operate…

The Amazon decisions also clarify that certain COVID-19 related regulations prohibiting the public gathering of 100 or more people do not apply to workplaces. Companies can continue to welcome in excess of 100 employees on site, provided that appropriate health and safety measures have been implemented.

7.      … but failure to follow the rules can result in a shut-down…

Companies that have not taken the substantive and procedural measures necessary to protect employee safety face litigation risk. The Amazon judgments establish powerful precedent for employees seeking interim relief: As the trial and appellate courts held, the risk of contracting or spreading the novel coronavirus constitutes an “imminent harm” and can therefore ground a request for preliminary injunctive relief under Article 835 of the French Code of Civil Procedure. This relief can include an order to limit or cease operations until adequate safety measures have been adopted.

8.      … fines …

French courts in preliminary judgment actions can also order the provisional payment of plaintiffs’ anticipated damages; set fines for non-compliance with interim orders; and require the losing party to bear the legal fees and expenses sustained by the prevailing party.

9.      … civil liability …

In addition to facing actions for injunctive relief, a company could theoretically face damages claims if employees fall ill. Under Article L. 452-2 and Article L. 452-3 of the Social Security Code, if an employee sustains an injury in the workplace due to circumstances that the employer knew or should have known were dangerous, yet failed to address, the employee is entitled to recover 100% of lost compensation, plus compensatory damages (with interest). This should provide employers incentives to take all necessary precautions in the COVID-19 era.

10.  … or criminal actions.

Moreover, failing to take adequate measures to protect employee health and safety creates some risk of criminal liability. Amazon employees, for instance, filed a separate criminal complaint under Article 223-1 of the French Criminal Code, alleging that the company put them at imminent risk of serious physical harm. While the public prosecutor recently announced that the government has declined to prosecute the case, it nonetheless demonstrates that such actions could be brought, and that an ounce of prevention in these uncertain times is worth a pound of cure.

Johanna SCHWARTZ MIRALLES

Attorney (US)
Johanna is an American attorney and a graduate of Harvard Law School. Her legal practice spans a broad range of fields, including international commercial contracts, anti-corruption laws, compliance programs, whistleblower protections (Sapin II), business litigation and arbitration.

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Benoît LAFOURCADE

Co-Founder, Partner & Solicitor -
International Corporate Law & Litigation

Benoît, Delcade’s co-founder, is a Paris Bar lawyer and UK Solicitor (London).

Advisor for various embassies, working closely with the firm's team, Benoît offers his services to French and foreign companies requiring cross-cutting strategic and legal support in business law.

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