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Since July 1st , 2016, 6 new occupational hardship factors have come into force.
In addition, new guidelines have been issued to clarify the applicability of the system (a summary of the provisions applicable to 2015 exposure, an overview of transitional measures for 2016, etc.). We provide a progress update on this topic below.
The 6 new occupational hardship factors
First, it is important to note the 6 new occupational hardship factors that came into effect on July 1, 2016:
*) The list of hazard classes and categories defined by the decree of December 30, 2015, is as follows:
- respiratory sensitizers, category 1, sub-category 1A or 1B: H334;
- skin sensitizers, category 1, sub-category 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 the additional category for 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.
As of July 2016, if you have not already done so or are not currently in the process, you must identify employees exposed to the newly effective risk factors.
Details regarding the hardship prevention scheme
Next, we invite you to review the instruction dated June 20, 2016, which clarifies the implementation of all employer obligations: a summary of the provisions applicable to 2015 exposure, an overview of transitional measures for 2016, and details on long-term provisions.
The new instruction provides the following guidance:
- For an employee assigned to multiple positions during the year, the employer must account for the total exposure experienced across all these roles to determine the average annual exposure.
- When assessing hardship conditions, employers must consider the expected risk-reduction performance of collective and individual protective measures, particularly as specified by the manufacturer. However, it is recommended that this performance be adjusted based on actual usage conditions (e.g., hearing protection).
- There are no specific assessment methods for exceeding thresholds for part-time employees.
- Declarations of exposure factors and payments of hardship-related contributions for 2015 may be amended until September 30, 2016. For the agricultural sector, this correction can be made until October 10, 2016. The instruction notes that these same extensions will apply to 2016 exposure.
- This instruction will be supplemented by further guidance detailing how employees acquire and use their points.
In detail, the instruction consists of 8 technical sheets, which can be summarized as follows:
Sheet No. 1 - Scope of the hardship account, account opening, employer declarations, and contribution payments:
This sheet outlines the provisions applicable to declaring exposure and paying contributions.
Sheet No. 2 - Monitoring procedures for workers not covered by the personal hardship prevention account:
This sheet clarifies the categories of workers ineligible for the CPPP for whom employers must maintain an individual monitoring record if they are exposed to one or more professional risk factors beyond the thresholds. This applies particularly to workers posted to France and those covered by a special pension scheme that includes its own specific recognition and compensation mechanism for hardship.
Sheet No. 3 - Exposure thresholds for hardship factors applicable in 2015 and 2016:
Several clarifications are provided regarding the definitions and exposure thresholds for certain factors:
1) Night work: The instruction clarifies the specific case of on-call duty; if an employee remains at home while waiting to be called for an intervention, only the actual time spent working is counted toward exposure assessment.
2) Repetitive work: as a reminder, this is characterized by tasks involving repeated movements that strain all or part of the upper limbs at a high frequency and under a constrained pace. The guidance clarifies the concept of a "constrained pace," defining it as "a pace that does not allow the employee to regulate their activity or obtain sufficient recovery from fatigue for the affected body parts." It is therefore understood as "a situation where the employee cannot step away from the work task without immediate prejudice to production, service, or to themselves and their colleagues."
The guidance further specifies that hours worked under the two situations defined in Article D. 4161-2 of the Labor Code (cycle times > or ≤ 30 seconds) can be aggregated to reach the 900-hour annual threshold, provided they involve the same body parts. Finally, it is noted that for 2015, employers who assessed and/or declared their workers' exposure based on the initial definition prior to the publication of the latest decrees are not required to modify that assessment or declaration based on the new definition.
3) Manual handling of loads: the guidance explains that if a worker performs any of the actions detailed in Article D. 4161-2 of the Labor Code (lifting/carrying, pushing/pulling, moving with a load, picking up a load from the floor or above shoulder height), the time spent on each action must be aggregated and compared against the minimum annual duration of 600 hours/year.
4) Strenuous postures: according to the guidance, the assessment consists of evaluating the five postures defined in the Labor Code and aggregating the total time spent in them.
5) Mechanical vibrations: for this factor, the time spent in both situations (hand-arm vibrations and whole-body vibrations) must also be aggregated during the assessment to be compared against the 450-hour/year threshold. The guidance also recommends that employers consult the manuals for new machinery, in which the manufacturer must indicate whether the equipment exceeds either of the two thresholds.
6) Hazardous chemical agents: dust and fumes are included within the scope of this risk factor. Some guidance is provided for cases where the employer's risk assessment reveals a risk that is not low, but where implemented measures—such as source ventilation or technical inspections—effectively eliminate or minimize that risk.
7) Extreme temperatures: the temperature to be taken into account is that of the work activity itself; consequently, outdoor temperatures are not considered.
Sheet No. 4 - Assessing worker exposure to arduous work, in connection with the overall risk assessment process and, where applicable, extended industry agreements or approved industry professional standards.
This technical sheet specifies that theoccupational risk assessment or the analysis conducted by the Health, Safety and Working Conditions Committee (CHSCT) may be used to carry out the arduous work assessment.
Regarding industry standards, an employer may only use a standard from another industry for positions, jobs, or work situations that are not identified in their own professional standard.
Sheet No. 5 - The pre-litigation procedure for employee disputes regarding exposure to occupational risk factors.
This sheet outlines the steps to follow in the event that an employee disputes the declaration made by the employer.
Sheet No. 6 - Principles for declaring exposure factors.
This sheet details the deadlines for declaring exposure factors and the various declaration procedures (DADS, DTS, and DSN).
It provides a summary table of exposure declaration dates based on the medium used:
The fact sheet then explains the transitional reporting procedures resulting from the deferred entry into force on July 1, 2016, of the six exposure factors (Noise, Vibrations, Strenuous postures, Manual handling of loads, Hazardous chemical agents, Extreme temperatures):
1) In 2017, the employer makes a single declaration regardless of 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 that came into force on July 1, 2016. The instruction therefore suggests that the assessment of exposure to the six factors is carried out retroactively to January 1, 2016, for contracts continuing beyond July 1, 2016.
2) However, for the 6 strenuous work factors concerned, the additional hardship contribution will only be applied to remuneration paid to the employees concerned between July 1 and December 31, 2016.
Fact Sheet No. 7 - Principles for paying contributions
The fact sheet presents the principles for declaring and paying basic and additional contributions, as well as special cases (business cessation, impact of social security contribution exemptions or the application of a flat-rate base, impact of factor correction, penalties for non-compliance, etc.).
Fact Sheet No. 8 - Procedures for employees to earn points
The fact sheet outlines the conditions for earning points and the methods for calculating them, as well as the planned adjustments (employees born before July 1, 1956, and the doubling of points for employees who may be penalized for 2016 due to the entry into force being delayed until July 1, 2016).
For information, please note that this instruction dated June 20, 2016, cancels and replaces DGT-DSS Instruction No. 1 of March 13, 2015.
Conclusion
This 2016 version of the instruction provides additional clarification and details.
Companies can therefore rely on the Labor Code, the published decrees, and this instruction—not to mention industry-specific guidelines, if they exist, as many are still to be published—to successfully carry out the process.