What steps should companies take vis-à-vis their employees?
Alternative electrical equipment, changing schedules, teleworking… With the threat of tension hanging over the electrical network this winter, companies must think about the measures to take in the event of a power cut. But the uncertainty surrounding these cuts and the expected notice period greatly complicates their task.
No one knows if they will happen, or when they will happen, or where they will happen. However, the very possibility of implementing these power cuts in the territory raises deep questions. The government has tried to allay concerns by formulating a specific crisis plan detailing the various consequences of these power outages as well as the measures to be taken. But there are still many unknowns, particularly in the provisions that companies will need and can make vis-à-vis their staff.
For some companies, a power outage can have serious consequences and lead to the loss of part of the production. But beyond the logistical or technical challenges strictly related to production, it is also the organization of work and the management of employees that arise for employers.
“There is nothing in the labor code that specifically provides for a provision in this particular case”, begins by recalling Akin Eric Rocheblave, lawyer specializing in labor law. On the other hand, electricity can be considered, in the same way as a hammer or a computer, as a work tool.
“But the company has an obligation to provide work to employees, to pay them compensation and to provide them with the tools necessary to perform this work”, he indicated.
“The power outage is therefore a problem for the employer: it is up to him to make arrangements to allow his employees to work and receive a salary,” he said.
Especially since, according to the specialist, it will not be a case of force majeure that exempts the employer from providing work tools to its employees.
Generators, the best option?
This can be through the upstream development and implementation of a business continuity plan (BCP) or through reflection and less formal reliance on this type of load shedding. Providing a generator to compensate for power outages can also be a good solution to ensure business continuity. This is mandatory in some strategic companies, such as airports in particular.
“There are two populations of companies. The ones considered critical – defense and health companies (hospitals, nursing homes, etc.), data centers – which are equipped for a long time because they have legal obligations to do this, or their insurance imposes on them. And then others, who are very poorly equipped”, explained Lenaïk Andrieux, president of the Groupement des industries des gensets (Gigrel), in the columns of EchoesDecember 5.
For the average company, despite the recent surge in quote requests, the equipment rate is still very low. Speaking of which, a large cost must be assumed for small structures where such an installation will only be used in a very hypothetical scenario.
The period of notice, headache
If they fail to equip themselves, companies have to sit on lost working time or rearrange working time by shifting their employees’ schedules, for example.
“But the complexity, on the business side, comes from the notice period announced by the executive”, underlined Benoît Serre, vice-president of the National Association of Human Resources Directors.
Although it is preceded by the first Ecowatt alert two days before, the effective implementation of these cuts can only be confirmed the day before for the same day.
A short period of time that also does not correspond to the notice period set by the labor code for a specific change in working hours. “Any change in working hours must be decided sufficiently in advance and in ways that allow the employee to organize themselves,” recalls Eric Rocheblave.
The option consisting of forcing employees to take leave or RTT during cut-off periods is subject to the same limitations.
“These arrangements cannot be made overnight,” the lawyer said. “These arrangements will be informalized outside the legal framework,” he expected.
As for the exceptional implementation of teleworking on cut-off days, it can also be considered for the activities that allow it. This option has the advantage of addressing a series of consequences that are difficult for employers to understand, such as “the closure of schools but also the operation of elevators, heating, security servers, .. .”, list Benoît Serre.
Teleworking, a solution depending on the case
But, then again, such a proposal cannot be improvised. For companies that have used it regularly since the health crisis, it will be easy. On the other hand, for others who have never implemented it, it raises legal questions. “Telework theoretically requires workstation ergonomics and occupational medicine consultation,” said Me Rocheblave. Not to mention that employees, whose home is located in a load shedding zone, cannot work remotely either.
Finally, although surprising on paper, the establishment of partial activity under common law for a short duration of load shedding (2 hours maximum) seems not to be ruled out. Power cuts are well considered by the government as a rare but possible reason for partial unemployment, as part of the economic and social stability plan made in early January to deal with the consequences of the war in Ukraine.
“If a company directly affected by load shedding cannot adjust the working hours of its employees to deal with this situation, it is possible for it, as a last resort, to take action, for the duration of the load shedding and, if where. applicable, for the time required to restart production units, the partial mechanism of activity under common law, on the basis of ‘any other exceptional circumstances’ (sub-ground ‘load shedding’)” , indicates the site of the Ministry of Labor, its content was updated on December 7.
