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As of this July1, 2016, 6 new arduousness factors have come into force.
In addition, a new instruction has been published to clarify the applicability of the scheme (reminder of the provisions applicable to 2015 exposures, presentation of transitional measures for 2016, etc.). Here is a progress report on this subject.
The 6 new hardship factors
First of all, it's important to note the 6 new hardship factors that came into force on July 1, 2016:
*) The list of hazard classes and categories defined by the order of December 30, 2015 is :
- respiratory sensitizer category 1, subcategory 1A or 1B: H334 ;
- skin sensitizer category 1, subcategory 1A or 1B : H317 ;
- carcinogenicity, category 1A, 1B or 2: H350, H350i, H351 ;
- Germ cell mutagenicity, category 1A, 1B or 2 : H340, H341 ;
- reproductive toxicity, category 1A, 1B or 2, or additional category of effects on or via lactation: H360, H360D, H360FD, H360Fd, H360Df, H361, H361d, H361fd, H362 ;
- specific target organ toxicity following single exposure, category 1 or 2: H370, H371 ;
- specific target organ toxicity following repeated exposure, category 1 or 2: H372, H373.
In this month of July 2016, you must therefore, if you haven't already done so or are in the process of doing so, identify the people exposed to the factors newly coming into force.
Details of the "pénibilité" system
Next, we invite you to take a closer look at the instruction of June 20, 2016, which specifies the conditions for implementing all employers' obligations: a reminder of the provisions applicable for exposures in 2015, a presentation of the transitional measures for 2016 and clarification of the provisions applicable in the long term.
In particular, the new instruction provides the following information:
- In the case of a worker assigned to several workstations over the course of a year, the employer takes into account all the exposures sustained by the worker at all these workstations, in order to determine the average annual exposure.
- The employer's assessment of working conditions takes into account the expected risk-reduction performance of collective and individual protection measures, in particular as identified by the manufacturer. However, this performance should be weighted to take account of actual conditions of use (e.g. hearing protection).
- For part-time workers, there is no specific method for assessing whether the threshold has been exceeded.
- The declaration of exposure factors and the payment of specific contributions for penibility due in respect of exposure in 2015 can be amended by September 30, 2016 at the latest. For the agricultural scheme, this correction can be made up to October 10, 2016. The instruction states that these same derogations will apply to exposures relating to 2016.
- This instruction is to be supplemented by an instruction setting out the procedures for the acquisition and use of points by employees.
In detail, the instruction consists of 8 data sheets, which can be summarized as follows:
Sheet n°1 - Scope of the "compte pénibilité", opening of the account, declarations by the employer and payment of contributions :
This sheet sets out the provisions applicable to the declaration of exposure and payment of contributions.
Sheet n°2 - Exposure monitoring procedures for workers outside the scope of the personal account for the prevention of penibility
This sheet specifies the categories of workers not eligible for the CPPP, for whom employers must draw up an individual monitoring sheet when they are exposed to one or more occupational risk factors in excess of the thresholds. This applies in particular to workers seconded to France and workers affiliated to a special pension scheme with a specific system for recognizing and compensating for arduous work.
Sheet no. 3 - Thresholds for exposure to arduous work factors applicable in 2015 and 2016:
The definitions and exposure thresholds for certain factors have been clarified:
1) Night work: the instruction specifies the particular case of on-call duty; thus, if the worker remains at home while waiting to be called for an intervention, only the actual intervention time is taken into account when assessing exposure.
2) Repetitive work: as a reminder, this is characterized by the performance of work involving the execution of repeated movements, calling upon all or part of the upper limb, at a high frequency and under constrained cadence. The instruction clarifies the notion of constrained cadence: this corresponds to "a cadence that does not allow the employee to regulate his or her activity and to have sufficient recovery of fatigue by the segments of the limbs solicited". It is therefore understood as "a situation where the employee cannot avoid the work situation without immediate prejudice to production, the department or himself and his colleagues".
The instruction then specifies that hours worked in the two situations defined in article D. 4161-2 of the French Labor Code (Cycle time > or ≤ 30 seconds) can be added together to reach the 900-hour per year threshold, provided they involve the same segments of the body. Finally, it is indicated that for 2015, employers who carried out the assessment and/or declaration of their workers' exposure on the basis of the first definition, prior to the publication of the latest decrees, are not required to modify this assessment and/or declaration on the basis of the new definition.
3) Manual handling of loads: the instruction explains that if a worker performs any of the actions detailed in article D. 4161-2 of the French Labor Code (Lifting/carrying, Pushing/pulling, Moving with the load, Load picked up from the ground or from a height above the shoulders), the time spent on each action must be added up and compared with the minimum annual duration of 600 h/year.
4) Difficult postures: according to the instruction, the assessment consists of evaluating the five postures defined in the French Labor Code and adding up the time spent in all of them.
5) Mechanical vibration: for this factor, the cumulative time for the two situations (hand-arm vibration and whole-body vibration) should also be taken into account when comparing the 450 h/year threshold. The instruction also recommends that employers consult the manual for new machines, in which the manufacturer must indicate whether or not the equipment exceeds the two thresholds.
6) Hazardous chemical agents: dusts and fumes are included in the scope of the risk factor. A few indications are provided to explain the case where the risk assessment carried out by the employer reveals that the risk is not low, but that the measures put in place enable the risk to be eliminated or reduced to a minimum: ventilation at source, technical controls, etc.
7) Extreme temperatures: the temperature to be taken into account corresponds to the activity itself; therefore, outside temperatures are not taken into account.
Sheet No. 4 - Assessment of workers' exposure to arduous working conditions, in line with the overall risk assessment approach and, where applicable, extended branch agreements or approved branch job descriptions.
This data sheet specifies that theassessment of occupational risks or the analysis carried out by the CHSCT can be used to carry out the assessment of arduousness.
As far as industry standards are concerned, an employer can only use a standard from another industry for jobs, professions or work situations that are not identified in his own professional standards.
Sheet no. 5 - The pre-litigation procedure for employee contestation of exposure to occupational risk factors
This fact sheet sets out the steps to follow in the event of an employee contesting an employer's declaration.
Sheet no. 6 - Principles for declaring exposure factors
This sheet details the deadlines for declaring exposure factors and the different procedures for declaring exposure factors (DADS, DTS and DSN).
It provides a summary table of exposure declaration dates according to the medium used:
The sheet then explains the transitional reporting procedures for the deferred entry into force on July 1, 2016 of the six exposure factors (Noise, Vibrations, Awkward postures, Handling of loads, Dangerous chemical agents, Extreme temperatures):
1) in 2017, the employer makes a single declaration whether the factors came into force before or on July 1, 2016. For contracts ending before July 1, 2016, the employer is not required to assess exposure to the six factors coming into force on July 1, 2016. The instruction therefore suggests that exposure to the six factors is assessed retroactively to January 1, 2016 for contracts continuing beyond July 1, 2016.
2) on the other hand, for the 6 hardship factors concerned, the additional hardship contribution will only be applied to remuneration paid to the employees concerned between July 1 and December 31, 2016.
Sheet no. 7 - Principles of contribution payment
The sheet describes the principles governing the declaration and payment of basic and additional contributions, as well as special cases (cessation of business activity, impact of an exemption from social security contributions or the application of a flat-rate base, impact of the correction of a factor, penalties for non-compliance, etc.).
Sheet no. 8 - Procedures for employees to acquire points
The fact sheet sets out the conditions for acquiring points and the methods for calculating them, as well as the adjustments provided for (employees born before July 1, 1956, doubling of points for employees who may be penalized for 2016 due to the delayed entry into force on July 1, 2016).
For information, please note that this instruction of June 20, 2016 cancels and replaces DGT-DSS instruction no. 1 of March 13, 2015.
Conclusion
The 2016 version of this instruction provides further clarification.
Companies can therefore rely on the French Labor Code, the decrees that have been published and this instruction, not forgetting the industry's reference manuals, if any exist (there are still many to be published), to complete the process.