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With a view to safeguarding the pay-as-you-go pension system, Law no. 2014-40 of January 20, 2014 guaranteeing the future and fairness of the pension system has been adopted. In particular, this reform aims to take better account of the management of arduous work.
Against this backdrop, the Act adds a new Title VI to Book I of Part IV of the French Labor Code, entitled "Provisions specific to certain occupational risk factors and arduous working conditions", with the creation of three new chapters to come into force on January 1, 2015.
Chapter I "Exposure prevention sheet" (Articles L. 4161-1 to L. 4161-2)
Article L. 4121-3-1 of the French Labor Code, which defines the principle of drawing up a "fiche de prévention de la pénibilité", has been transferred to the newly-created article L. 4161-1. Apart from a few formal changes made to the former article L. 4121-3-1, the novelty lies in the fact that it is now explicitly specified that the "fiche de prévention de la pénibilité" must be drawn up by the employer for each worker exposed to one or more occupational risk factors, "above certain thresholds, after application of collective and individual protection measures". These thresholds will be defined by decree. The latter should be published in the coming months. This individual sheet must be sent annually by the employer to the employee and to CARSAT (or MSA).
This new article L. 4161-1 introduces an obligation for the user company to transmit to the temporary employment agency the information it needs to draw up an individual record for the prevention of penisibility for its staff.
Article L. 4161-2 stipulates that standard situations defined by industry-wide collective agreements (referring to the positions occupied and the collective and individual protective measures applied) may be taken into account to help the employer characterize exposures above the thresholds, in order to draw up the prevention sheet.
Chapter II "Compte personnel de prévention de la pénibilité" (Articles L. 4162-1 to L. 4162-22)
The plan is to create a personal prevention and hardship account. Any employee who is exposed to at least one arduous factor above the exposure thresholds, after applying collective and individual protection measures, will have a certain number of points credited to his or her account. This allocation is made on the basis of the employee's exposure declared by the employer, on the basis of the individual data sheet.
This chapter introduces the procedures for opening, topping up, using and managing the personal account for the prevention of arduous working conditions, its financing, and its relationship with the exposure prevention sheet, as well as with agreements to prevent arduous working conditions.
The decrees setting the conditions for entering points in the account, the maximum number of points that can be acquired and the definition of the number of points have not yet been published.
Employees will be able to access an information site on the Internet to find out how many points they have earned or used.
The fund responsible for financing the rights associated with the personal account for the prevention of arduous working conditions will be financed by two employer contributions, one of which will concern only employers who have exposed at least one of their employees to arduous working conditions.
According to the information on the government portal, each quarter of exposure to an arduous factor would give entitlement to one point. The maximum number of points would be 100. The points would be convertible, according to the employee's choice: the first 20 points could be used for a less arduous professional retraining. The remaining 80 points could be converted into paid full-time part-time work for a period chosen by the employee, or to set up a phased retirement scheme, for example. Lastly, the points could be converted into early retirement.
This scheme therefore complements the one introduced in 2010, which provided for early retirement in the event of partial permanent disability of at least 10%.
Chapter III "Agreements to prevent and manage arduous working conditions" (Articles L. 4163-1 to L. 4163-4)
The provisions relating to agreements on the prevention of hardship introduced in this Chapter III correspond to the requirements of Articles L. 138-29 to L. 138-31 of the French Social Security Code, which have been transferred to Title VI of the French Labor Code without any substantive changes. As a result, certain companies are now obliged to sign an agreement or draw up an action plan to prevent arduous working conditions.
The companies concerned (private companies, public industrial and commercial establishments, public administrative establishments employing staff under private law) are those with at least 50 employees, and for which more than 50% of the workforce is exposed to at least one of the risk factors above the exposure thresholds.
In the event of non-compliance with this requirement, the text provides for a penalty, set at a maximum of 1% of the remuneration or earnings paid to the employees or assimilated workers concerned during the periods for which the company is not covered by an agreement or action plan. These articles also set a framework for the conditions under which agreements and action plans are drawn up and their content. A decree will specify these latter provisions.
Note: this legislative section of the Labor Code sets out the operating principles. We invite you to read our specific article on the management of arduous working conditions to find out more.