France: New law addresses arduous working conditions

Legislation adopted in France in October 2010 permits workers whose health has suffered because of arduous or strenuous working conditions to retire early and seeks to prevent exposure to such conditions.

On this page:
Government acts on difficult working conditions
New obligation on employers
Monitoring exposure to risks
Retirement at 60 for those with work-related health problems
Use of time savings accounts
Financial penalties for failure to act
Alleviating and compensating for difficult working conditions
Scientific committee
Agreement at Rhodia.

Government acts on difficult working conditions

In late October 2010, the Government's controversial pensions reform legislation was adopted by Parliament, despite fierce opposition from trade unions. A key measure is an increase in the minimum age at which people may retire on a full state pension, assuming that they have a complete contribution history, from 60 to 62 years. The increase will be phased in over the period up until 2018. Further, the age at which a full pension is payable even if the person concerned does not have a complete contribution history will be progressively increased from 65 to 67 years.

A long-standing issue in French employment and social security policy is the "arduousness" or "strenuousness" (pénibilité) of people's working lives. The debate centres on the fact that some workers are subject during their careers to working conditions that have a long-term effect on their health, such as: exposure to toxic substances; working at night; or work requiring major physical effort. Scientific studies have found that these factors can have a negative effect on people's life expectancy and quality of life in old age.

Previous pensions overhaul legislation adopted in 2003 called on national trade union confederations and employers' organisations to negotiate a cross-industry agreement on retirement and other arrangements for workers who have had arduous/strenuous careers. The talks began in February 2005 and finally broke down in 2009, mainly because of disagreement over who should pay for the measures concerned.

The Government has now taken up the issue and included measures on arduous/strenuous work in its pensions reform legislation. The aim is to allow workers whose health has suffered because of their working conditions to continue to retire on a full pension from the age of 60, while at the same time introducing a system for monitoring and preventing exposure to such conditions.

The Government states that the new scheme is "the most advanced and generous in Europe" for dealing with arduous/strenuous work. As part of the preparatory work for its legislation, it examined the situation in Germany, Italy, Poland, Spain, Sweden, the US and the UK, and found that only Italy and Poland have put in place mechanisms for taking account of arduous careers, neither of which is as comprehensive as the new French scheme.

New obligation on employers

The Labour Code requires employers to [Article:98434#8.1 "take necessary measures to ensure workers' safety"] and protect their physical and mental health. These measures must include actions to prevent work-related risks. The new legislation adds an obligation to take actions to prevent arduous/strenuous work.

The duties of [Article:98434#8.3 "joint employer-employee health and safety committees"], which must be set up in all establishments employing at least 50 employees, currently include analysing health and safety risks and working conditions. The new legislation extends this analysis role to include the exposure of employees to factors that relate to arduous/strenuous working conditions.

Monitoring exposure to risks

The legislation seeks to improve the "traceability" of individual workers' exposure to workplace risks, in order to improve the prevention and relief of such exposure. This will be achieved by changing the rules on employees' workplace medical dossiers, and introducing a new scheme to record workers' exposure to working conditions that may damage their health.

The Labour Code currently provides for the works doctor (all employers must engage the services of such a doctor) to maintain a workplace medical dossier on each employee, starting with the obligatory post-recruitment medical examination and updated following all subsequent examinations. The dossier is covered by medical confidentiality rules and may not be shown to the employer.

The statutory rules on medical dossiers have now been strengthened. An employee's dossier must obligatorily include information on his or her state of health and on the consequences observed of the employee's exposure to workplace risks. The dossiers will thus, it is hoped, become a more useful means of tracking individual workers' exposure to difficult working conditions. Where this is justified by factors such as the employee's age or state of physical or mental health, the doctor should make recommendations to the employer on changes to the employee's work or job, and record these in the dossier.

The legislation introduces a new requirement on employers to maintain "individual files" on the risk exposure of employees with difficult working conditions. The new scheme will apply to workers who are exposed to one or more occupational risk factors that are likely to leave "lasting, identifiable and irreversible traces" on their health. These factors - which will be specified by a decree - are linked to:

• work with "marked physical constraints" (such as work that involves lifting heavy loads, difficult postures or vibrations);
• an "aggressive" physical environment (such as toxic products, extreme temperatures, loud noise or high pressure); or
• "certain work rhythms" (such as night work, repetitive work or alternating shift patterns).

The employer will be obliged to record in the individual file the arduous/strenuous working conditions to which the employee is exposed, and the duration of the exposure. The files should be taken into account in the employer's overall risk-evaluation policy and in the [Article:98434#8.2 ""single risk-evaluation document" that employers are obliged to draw up"]. The files should be transmitted to the company medical service and included in the employees' workplace medical dossiers.

Retirement at 60 for those with work-related health problems

The law provides for workers who have a permanent health incapacity because of certain work-related health problems to retire from the age of 60 with a full pension, irrespective of their contribution history. They will therefore not be affected by the general increase in the minimum retirement age to 62.

The scheme automatically applies to workers who have suffered a permanent incapacity of at least 20% because of an occupational illness or workplace accident directly linked to their work activity. Further, workers with a lower level of incapacity can also retire from 60 years of age with a full pension, if the following conditions apply:

• the worker must have a permanent incapacity, certified by a doctor, of at least 10%;
• the worker must have been exposed, for a period to be determined by decree, to one or more occupational risk factors; and
• the incapacity must be directly linked to the exposure to the risk factors.

A "multidisciplinary committee" will be set up to assess, on a case-by-case basis, whether or not claimants have been exposed to relevant occupational risk factors, and whether or not their incapacity is directly linked to this exposure. The committee's composition and functioning will be established by a decree and it will involve workplace health experts as well as doctors.

The Government estimates that around 30,000 people per year will be able to retire from the age of 60 under the new scheme. The annual cost of around €300 million will be met by the public occupational illness and workplace accident insurance scheme, which is funded by employers' contributions.

Use of time savings accounts

The Labour Code allows for the creation of "time savings account" (compte épargne-temps) schemes, based on a sector- or company-level collective agreement. These accounts allow employees to save up time off, for example in the form of untaken holiday or days off, or the time equivalent of bonuses or other additional payments, to be used later. The details of schemes are set out in the agreements on which they are based, and the savings may be used, for example, to finance long-term leave (such as a sabbatical), or to contribute to a pension scheme.

In order to help older workers reduce their work burden, the pensions legislation provides that time off saved in an account can, by agreement with the employer, be used to reduce their working time partially as they approach retirement. This will be the case for all employees, even if the agreement that created the particular savings scheme did not allow for the possibility of using the time off in this way.

Financial penalties for failure to act

The law encourages collective bargaining on the prevention of arduous/strenuous working conditions, with fines for companies that do not act in this area.

From 1 January 2012, companies with 50 or more employees that are not covered by a collective agreement, or an equivalent action plan, on the prevention of arduous/strenuous working conditions will be subject to a financial penalty. This will apply only to companies that employ a certain proportion of workers - to be set by decree - who are exposed to the occupational risk factors outlined in the legislation - that is, those related to marked physical constraints, an aggressive physical environment or certain work rhythms.

To be exempt from the penalty, companies with 50 or more employees must have signed a collective agreement, with a duration of up to three years, dealing with the prevention of arduous/strenuous working conditions. These agreements must cover a number of specific themes, which will be set by decree. Alternatively, companies will be exempt if they draw up an equivalent action plan on the issue, with a duration of up to three years, in consultation with employee representatives. Further, companies with between 50 and 300 employees may gain exemption from the fine if they are covered by a sector-level collective agreement on the prevention of arduous/strenuous working conditions.

The financial penalty will be up to 1% of the company's paybill during the period when it is not covered by a relevant agreement or action plan. The exact amount will be set on a company-by-company basis, in the light of each firm's efforts in this area. The fine will be paid into a new national fund for the relief of arduous/strenuous working conditions.

The scheme to encourage bargaining on arduous/strenuous working conditions is modelled on legislation, which came into force in January 2010, that fines companies without agreements or action plans on promoting the employment of older workers.

Alleviating and compensating for difficult working conditions

The legislation creates, on an experimental basis until the end of 2013, a framework for the conclusion of sector- or company-level collective agreements on lightening the workload of employees subject to difficult working conditions, or compensating them for these conditions. The employees concerned are those who have been exposed to one or more of the occupational risk factors outlined in the legislation, for a period to be defined by the agreement, and do not meet the conditions for retiring on a full pension.

Agreements may provide for a lightening of these employees' workloads towards the end of the career, by providing for them to:

• switch to part-time work until they retire, while receiving an allowance to compensate for all or some of their loss of pay; or
• take on a role of tutoring young workers in the company, again receiving a special allowance.

With regard to compensating employees for their arduous/strenuous working conditions, agreements may provide for them to receive bonuses or additional time off or holidays. The compensation may be paid into the employees' time savings accounts.

To pay for these alleviation and compensation measures, sectoral agreements should set up special industry-wide funds, financed by employers' contributions. Companies that reach their own agreements on alleviation and compensation would be exempt from making contributions. Further, a national fund for the relief of arduous/strenuous working conditions will be set up to make a financial contribution to measures taken by employers on the basis of a sector- or company-level agreement. The fund will be financed by the fines on employers not covered by agreements or action plans on the prevention of arduous/strenuous working conditions, along with contributions from the state and from the public occupational illness and workplace accident insurance scheme.

Scientific committee

The new legislation essentially deals with the immediate effects of arduous/strenuous working conditions, which have perceptible effects on workers' health at the time of retirement. The Government accepts that there may be other, longer-term effects that are not visible at that stage. However, it believes that monitoring and "traceability" systems are currently inadequate to measure all the effects of exposure to the occupational risk factors referred to in the legislation. There is also no accurate way of measuring the threshold of exposure beyond which people's healthy life expectancy is diminished.

With the aim of filling these gaps in knowledge, the law sets up a scientific committee. It will be given the task of assessing, by the end of 2013, the way in which prolonged exposure to various occupational risk factors may result in a significant threat to workers' health. A new "observatory" on arduous/strenuous working conditions, which has been set up within the tripartite Working Conditions Guidance Council (Conseil d'orientation sur les conditions de travail), will identify the potentially arduous/strenuous work activities to be considered by the scientific committee.

Agreement at Rhodia

A number of companies have already reached collective agreements on tackling arduous/strenuous working conditions, and an accord signed at the Rhodia chemicals group in June 2010 provided partial inspiration for the new law's provisions on alleviating and compensating for difficult working conditions.

The Rhodia agreement applies to employees working in continuous (24 hours a day, seven days a week) and semi-continuous (24 hours a day, with a weekly break) shift operations, with further provisions relating to other workers in potentially problematic situations to be considered in the first half of 2011. The agreement both improves working conditions for the employees concerned and allows shiftworkers to cease work before the normal retirement age.

The accord provides that morning shifts will start later and that, during night shifts, the workload will be reduced and workers will be given an extra rest break. The company will conduct a feasibility study at each site to examine which tasks currently performed on a continuous or semi-continuous shift basis could be carried out during normal day shifts. Shiftworkers will also be able to request temporary assignment to day work.

Rhodia employees who are, or have been, working in continuous or semi-continuous shifts may, if they wish, cease work up to two years before they become entitled to a full state retirement pension and receive an "end of career income" from the company during this period. This scheme applies temporarily until the end of 2011, when the new pensions legislation takes effect.

The scheme is open to employees aged at least 58 on 31 December 2011 who: have worked in continuous or semi-continuous shift patterns, including night work, for at least 22 years, at Rhodia or with another employer; and have the contribution history necessary to receive a full state retirement pension within two years.

Employees who cease work under the scheme receive until they retire on their state pension an income from Rhodia equal to 75% of their former gross pay. During the pre-retirement "cessation of activity", their employment contracts are suspended, but they remain Rhodia employees and are covered by all statutory and supplementary social security and welfare provisions that apply to employees. The cessation of activity period is counted as employment for the purpose of calculating all retirement-related entitlements related to length of service.

The company estimates that the temporary cessation of activity scheme will affect around 100 employees and will cost between €60,000 and €80,000 per worker.

This article is based on material provided by Christophe Boulay, correspondent for France.

European employment policy, practice and law, November 2010