Focus on the right of alert concerning public health and the environment

Every worker has the right to alert their employer if they observe a serious risk to the environment or public health. What is the procedure? What are the employer's obligations? We'll present all of this in detail in this article!

What is the right to alert regarding public health and the environment?

Established by Law No. 2013-316 of April 16, 2013 and Decree No. 2014-324 of March 11, 2014, the right to alert regarding public health and the environment allows any worker who observes a serious risk to the environment or public health to report it to their employer to prevent the damage from occurring.

More specifically, the regulations state that the worker must immediately alert the employer if they believe, in good faith, that the products or manufacturing processes used or implemented by the company pose a serious risk to public health or the environment (Articles L4133-1 and L4133-2 of the Labor Code.).

ℹ Please note : The right to alert regarding public health and the environment must be distinguished from the general whistleblowing scheme. Indeed, its scope is strictly limited to issues falling within the domain of public health and the environment.

It must also be distinguished from the right to alert in cases of serious and imminent danger to health and safety at work (Article L2312-60 of the Labor Code) which is accompanied by an employee's right to withdraw from work.

Who can exercise the right to alert regarding public health and the environment?

The right to alert regarding public health and the environment is open to any worker, whether or not they are a member of the Social and Economic Committee (CSE). It applies in all companies, regardless of their workforce size.

It is important to specify that the concept of “worker” is broader than that of an employee. It notably includes interns, temporary workers, and more generally, any person placed under the employer's authority for any reason whatsoever.

Whistleblower Protection

A worker who raises an alert in health and environmental matters benefits from comprehensive protection (Article L4133-3 of the Labor Code):

• they cannot be sanctioned, dismissed, or subjected to discriminatory measures for having reported or disclosed information within the scope of their right to alert (Article L1121-2 of the Labor Code);
• they cannot be held responsible (civilly and criminally) for damages caused by their report provided they had reasonable grounds to believe that this report was necessary (Article 10-1 of Law No. 2016-1691) ;
• In the event of termination of the employment contract following the reporting of an alert, the employee may refer the matter to the labor court (articles 12 to 13-1 of Law No. 2016-1691).

What are the conditions for exercising the right to alert regarding public health and the environment?

The exercise of the right to alert is subject to three cumulative conditions :

• the risk must have an impact on public health and/or the environment ;
• the risk must be serious (but not necessarily “imminent” as for the right to alert in case of serious and imminent danger) ;
• the serious risk must be linked to the products or manufacturing processes used or implemented by the company.

Examples of situations that may give rise to the exercise of the right to alert:

Regarding public health: infections, food contamination, etc.

Regarding the environment: air, soil, or water pollution, excessive noise exceeding regulatory thresholds, non-compliant waste disposal, etc.

Specifically, what obligations does the employer have?

Recording the alert

Articles D4133-1 and D4133-2 of the Labor Code set out the procedure applicable respectively in the event of an alert from a worker or a member of the CSE.

In both cases, the alert must be formally recorded in a special register (the health and environmental alert register) whose pages are numbered. It must be dated and signed.

🔎 Focus : These formalities aim, on the one hand, to start the period during which the alert must be processed by the employer (and the possible referral to the prefect), and on the other hand, to make the whistleblower accountable by preventing anonymous or malicious reports.

Furthermore, the recorded alert must mandatorily include:

• the products or manufacturing processes used or implemented by the establishment that the worker believes pose a serious risk to public health or the environment;
• where applicable, the potential consequences for public health or the environment ;
• any other relevant information.

This register must be made available to the CSE (article D4133-3 C. trav.).

⚠️ Warning : Failure to make the register available to the CSE exposes the employer to a fine of up to 10,000 euros. This fine is increased to 30,000 euros and one year's imprisonment in the event of a repeat offense. It is applied as many times as there are employees concerned (article L4741-1 C. trav.).

Note that in companies with several establishments but only one CSE, setting up the alert register at the head office level is sufficient. The employer is not required to set up a register in each establishment (Cass. soc., 28 septembre 2022, n°21-16993). Conversely, it appears that when each establishment of the same company is considered an independent legal entity with its own CSE, the company must then set up the register in each of its distinct establishments.

Handling the alert

When the alert originates from an employee, the employer must inform the latter of the action taken regarding the alert (article L4133-1 C. trav.).

When the alert originates from a CSE member, the employer must examine the situation jointly with the employee and inform them of the action taken regarding the alert (article L4133-2 of the Labor Code).

In all cases, the employer must take the necessary measures to put an end to the situation that led to the exercise of the right to alert.

ℹ Please note : The CSE must be involved throughout the alert procedure. Thus, the employer must inform it of the alerts received and the actions taken (article L4133-4 of the Labor Code). It must also inform the CSE of alerts that led to the prefect being notified.

Information for employees

Prior to any potential alert procedure, the employer must inform employees about:

the risks that products or manufacturing processes used or implemented by the establishment may pose to public health or the environment ;

• the measures taken to remedy them.

This obligation is in addition to the general information obligation regarding occupational health and safety risks provided for in article L4141-1 of the Labor Code.

CSE Meeting in Companies with at Least 50 Employees

Finally, the Labor Code stipulates that the CSE must be convened whenever a serious event occurs related to the establishment's activity that affects public health or the environment.

‍

Photo credit: 212151214 @DedMityay