The President of the Republic announced on March 31 the closure of schools and nurseries for three weeks, from April 6 to 25, including school holidays, the dates of which have been changed for all areas. This situation generates difficulties for companies: their employees will be forced to interrupt their activity to look after their children if they cannot telework. How will employers manage the absence of their employees? Is the partial activity mechanism applicable? Are other solutions possible?
Place employees forced to keep their children in partial employment
The system of placement in partial activity for “childcare” was put in place by article 20 of the amending finance law n ° 2020-473 of April 25, 2020, as of May 1, 2020. The national closure of classes and crèches as of April 6 allows employees to benefit from the partial activity scheme.
Can thus be placed in a position of partial activity private law employees meeting several cumulative conditions:
employees forced to keep their child under sixteen or in a disabled situation regardless of age;
being the subject of a measure of isolation, eviction or home support (such as the closure of a class or nursery);
in the inability to continue working (therefore without the possibility of teleworking).
According to the Ministry of Labor, only one of the two parents can be placed in partial activity to look after their children. The employee must give his employer a sworn certificate stating that he is the only one of the two parents to interrupt his activity for the days concerned.
Moreover, the impossibility of teleworking would be assessed not according to the workstation itself, but with regard to the context of teleworking. The employer and the employee should consult each other on the possibility of teleworking depending on the nature of the activity (contact with customers or not, videoconference meetings or not, etc.) and the age of the child.
Give priority to paid leave during school holidays
The closure of schools includes the two-week school vacation, the dates of which have been modified by the President of the Republic. The Ministry of Labor, in a press release dated April 1, 2021, first invites employers to facilitate the taking of paid leave by their employees on these new school vacation dates. A derogation from confinement is even tolerated : inter-regional travel will be authorized so that employees can take their children to their relatives for babysitting during school holidays.
So the paid vacation or RTT scheme must be favored during school holidays, as well as childcare arrangements with relatives. If this is not possible, the partial activity regime may apply during school holidays, according to the Ministry of Labor.
Compensate employees placed in partial employment to look after their children
In the current state of the texts and until April 30, 2021, there are no specifics concerning the compensation of employees in partial activity for childcare. It is the common law of partial activity compensation that applies in this situation:
Partial activity allowance paid by the employer to the employee : 70% of gross remuneration capped at 4.5 minimum wage (ie 84% of their net remuneration, or 100% for employees with minimum wage);
Partial activity allowance paid by the State to the employer : 60% of gross remuneration capped at 4.5 minimum wage, except specific sector benefiting from a rate increased to 70%.
Regarding the partial activity allowance, the Ministry of Labor nevertheless announced, in its press release of March 31, 2021, that employers would benefit from a “zero remainder charge”, i.e. an allowance of up to 70% of the employee’s gross remuneration, whatever the sector of activity. A draft decree has in fact been submitted to this effect and provides for its application to periods of partial activity for childcare starting from April 1, 2021.