UncategorizedWorkplace safety and business continuity in the Covid-19 context

April 1, 20200


In the current context in Tunisia, how can employers perceive safety at work (I) and what alternatives would be offered to them to continue their activity (II)?


Safety at work in the context of Covid-19


The legislator has placed an obligation on the employer to ensure the health and safety of his employees. Thus, article 152-2 of the Labour Code (L.C.) provides that “Every employer is required to take the necessary and appropriate measures for the protection of workers and the prevention of occupational hazards. In particular, he must:

  • Ensure the protection of workers’ health in the workplace,
  • Ensuring adequate working and environmental conditions,
  • Protect workers from the inherent risks in the machinery, equipment and products used,
  • Provide adequate collective and individual means of prevention and train workers in their use,
  • Inform and make workers aware of the risks of their professions.

For his part, the employee must respect the measures taken by the employer. To this end, article 153 (3) of the Labour Code provides that

« The worker is required to comply with the requirements relating to health and safety at work, and not to commit any act or failure likely to hinder the application of these requirements. In particular, he is required to do the following :

  • Carry out the instructions relating to the protection of his health and safety, as well as those of the employees working with him in the company,
  • CompleUse the means of prevention available to it, and ensure their conservation.
  • Participate in training cycles and information and awareness activities relating to health and safety at work that the company organizes or adheres to
  • Immediately inform his immediate supervisor of any observed deficiency that could lead to an occupational health and safety hazard,
  • Submit to the medical examinations prescribed for him/her »

On the other hand, what should be done, if one of the employees informs the employer that he or she has been infected with Covid-19?
The decree 2020-152 of 13 March 2020 classified the Corona virus Covid 19 among the communicable diseases as listed in the annex of the law 1992-71 relating to communicable diseases.
According to the mentioned decree, the legal provisions on compulsory examination, treatment and care and prophylactic isolation in the event of communicable diseases are applicable to Covid-19. Any infringement of the restrictions and directives issued by the health authorities shall be subject to the penalties laid down in the legislation in force.
Special prescriptions and measures of a preventive, curative or educational nature, specific to each of the diseases to which the affected persons are subject, may be laid down by order of the Ministry of Health. In the case of Covid-19, no such order has yet been issued.
It is, however, clear that the security measures for distancing employees must be scrupulously respected.
According to this law, any person who knows that he or she is suffering from a communicable disease must be examined and treated by a physician.
The Act does not refer to the employer’s obligations in such cases, but rather to the obligations of physicians who have diagnosed a communicable disease. Also, in the context of work, and in order for the employer to protect himself, it is recommended that all employees still working on work sites should have a medical examination by the occupational physician. The doctor will then be able to detect potential cases and/or risks, and take the necessary measures, which in turn, will enable you to make the appropriate decisions.
Should an employee test positive for Covid-19, and from the employee’s point of view, he will have to be treated in accordance with the provisions recommended by law 1992-71. From the employer’s point of view, this employee will have to be placed on sick leave in accordance with the legislation in force, i.e. on presentation of a medical certificate within 48 hours. The other employees of the company must be informed, and a medical examination by the occupational physician must be carried out. Depending on the results of the tests, the company will have to take one of the above-mentioned measures to prevent the spread of the virus.
In addition, the site will have to be completely disinfected.


Alternatives to pursue its activity in a Covid-19 context


In a context of confinement, traffic restrictions, resulting in a slowdown or even, for some, the cessation of activity, employers will try to find legal solutions that allow them to continue their activities as best they can, while adapting to the new situation.
Also, what are the different options available to the parties in a Covid-19 context?


Recovering lost hours


The employer may decide to interrupt work. In such a case, he decides to close the company and will then apply the provisions of article 92 of the Labour Code according to which : « Hours lost as a result of a collective labour disruption in an establishment or part of an establishment may be recovered within two months of the labour disruption. Hours so recovered shall be paid at the straight-time rate. The Labour Inspectorate is informed, in advance, of collective interruptions of work and the modalities of recovery, by the head of the establishment. However, if work is interrupted by an unforeseen event, notice shall be given immediately ».

It should be pointed out that, in accordance with the provisions of article 93 of the same Code : « (…) recovering lost hours may not have the effect of increasing the weekly working time to more than sixty hours, excluding the hours of permanent exemption, except in the case of urgent work the immediate performance of which is necessary to prevent imminent accidents or to organise rescue measures ».

In this case, the employee is not paid for the time of the work interruption.
Recovering is a right that belongs to the employer: he alone can prescribe it.
However, recovering of lost working hours is subject to conditions :

  • The hours of work to be recovered must have been lost collectively.
  • Only working hours lost collectively below the number of weekly hours worked in the company are recoverable; consequently, overtime is not recoverable;
  • Recovery may take place only after the collective interruption of work which justifies it; it may not be anticipated, even where the collective unemployment which is the cause is foreseeable, for example in the case of a public holiday
  •  must be brought to the attention of the territorially competent labour inspectorate.

Employees, for their part, may not refuse to carry out the recoveries requested of them without committing a fault liable to be sanctioned by dismissal or layoff.


Taking paid annual leave (annual vacation)


The company may agree with the employee that the period not worked will be considered paid vacation leave. In this case, the usual internal procedure for taking paid leave will have to be followed.
It should be noted that : « In the event of the closure of the establishment or part thereof for a period longer than that of annual leave, the employer shall be required, for each working day of closure exceeding the said leave, to pay the staff concerned remuneration not less than the daily allowance for paid leave » (Article 119 of the Labour Code).

This option does not require an addendum to the employment contract;


Unpaid leave


The company may agree with the employee that the period not worked will be considered leave without pay. In this case, this agreement must be in writing, without requiring an addendum to the employment contract.


Technical unemployment


Despite the fact that article 21 of the Labour Code does not cover the hypothesis of an epidemic or health emergency, the employer could consider resorting to technological unemployment, as provided for in article 21 of the Labour Code.
In this sense, according to the same article « Any employer who intends to dismiss or lay off all or part of his permanent staff, for economic or technological reasons, must first notify the territorially competent labour inspectorate ».

Even if the concept of technical unemployment has not been defined by the legislator, it is possible to refer to neighbouring rights in an attempt to extract its meaning. Thus, article R5122-1 of the French Labour Code provides that « The employer may place his employees in a position of partial activity when the company is forced to reduce or temporarily interrupt its activity for one of the following reasons :

  1. The economic situation
  2. Difficulties in the supply of raw materials or energy
  3. A disaster or bad weather of an exceptional nature
  4. The transformation, restructuring or modernization of the company;
  5. Any other circumstances of an exceptional nature ».

Consequently, lay-offs may be resorted to in the event of one or more of the above-mentioned situations arising, bearing in mind that the consequence is the suspension of the employment contract and not its termination.
So, concretely, who is this procedure aimed at (i) and how is it implemented (ii ) ?
Similarly, what would be the rights of employees in its implementation (iii)?

Conditions relating to employees :


Article 21 provides that technical unemployment concerns “all or part” of the “permanent staff”.
In this respect, two observations deserve to be highlighted:
-The first relates to the “collective nature” of unemployment. Indeed, recourse to Article 21 and following implies that all or part of the staff concerned by the suspension of work or dismissal is involved.
Thus, it will not be possible to request a layoff for a single employee.
-The second remark relates to the fact that technical unemployment concerns only permanent staff, i.e. employees bound by an employment contract of indefinite duration (CDI).


Procedural conditions :

Articles 21 and followings of the Labour Code provide for a number of compulsory procedures, in the case of recourse to short-time working, which can be summarized as follows:
A notification must be sent to the territorially competent labour inspectorate giving the following information:
– The name and address of the company, the surnames and first names of the person in charge, the starting date of its activity, the nature of the company, in short, all the documents constituting the legal file of the company,
– The reasons for the demand for unemployment.
In addition, the notification must be accompanied by all the necessary documents justifying the request for unemployment, such as a provisional report for the year 2020, the company’s financial and accounting reports for the last year elapsed, i.e. 2019, as well as any other document justifying the difficulties the company is going through (termination of contracts by the company’s customers, etc.).
Finally, the notification must be provided with :

  • A list of all the company’s workers with their marital status, the date of their recruitment and their professional qualifications,
  • Workers affected by layoffs. (unemployment)

Thereafter, and in accordance with the provisions of article 21-3 of the Labour Code, the territorially competent labour inspectorate or the Directorate General of Labour Inspection, as the case may be, must carry out an investigation into the request for unemployment benefit and attempt to reconcile the two parties concerned, within 15 days of the date of its referral. In practice, there is no need for this conciliation procedure because, on the one hand, there is no social conflict in such a case. In addition, the company’s management is in a better position to identify the difficulties the company is going through, to identify the risks and to think about possible alternatives, its interest being the continuation of its activities.
The employer shall submit to the labour inspectorate all the information and documents required by the investigation.
In the default of conciliation, the Labour Inspectorate or the Directorate General of Labour Inspection shall be obliged to submit the file on the dismissal, as the case may be, to the regional or central dismissal control commission, as the case may be, within three days of the completion of the conciliation attempt.
The regional committee or the central redundancy control committee shall be required to give its opinion on the dismissal file within a period not exceeding fifteen days from the date of referral to it.
It should be noted that this period may, however, be extended by agreement of both parties.
The regional commission or the central commission for the control of dismissal shall examine the case of dismissal in the light of the general state of the activity to which the undertaking belongs and its particular situation, and proposes in particular :

  • Reasoned rejection of the request,
  • The possibility of establishing a program to retrain or upgrade workers,
  • Revision of working conditions such as reducing the number of shifts or working hours,
  • Early retirement of eligible workers,
  • The reasoned acceptance of the request for unemployment.

In this case, the Commission shall take into account the following elements:

  • The qualification and professional value of the workers concerned ;
  • The family situation;
  • Seniority in the company.

In the light of the current context, it is possible that the procedures could be simplified in order to facilitate the use of such a procedure.

Employees’ rights in the event of recourse to technical unemployment


The rights granted to the employees, within the framework of the implementation of technical unemployment, will be concretely discussed and negotiated with the commission in charge of studying the company’s application.
On the basis of the file and the submitted documents, it will be possible to consider the following solutions:

  • Payment of all or part of the salary for a certain period beyond which, if the situation does not improve, the company may switch to a request for dismissal because of economic reasons. Any agreement reached will be embodied in the signature of an agreement binding both the employer and the employees;
  • State intervention through the application of the provisions of Decree No. 97-1925 of 29 September 1997 on social interventions in favour of workers.

Indeed, Decree 97-1925, as amended by Decree No. 2002-886 of 22 April 2002, established an annual allocation to the National Social Security Fund to finance social measures and actions in favour of workers who have lost their jobs for economic or technological reasons beyond their control.
In this context, and by virtue of Article 3 of the Decree, workers affected by technical unemployment will be eligible for a grant of up to twelve monthly payments of the working wage received.

The granting of this grant is, however, still subject to the following conditions :

  • have lost their jobs for reasons beyond their control, without benefiting from compensation, in the event that the company has ceased its activity for economic or technological reasons, or would have closed definitively and unexpectedly without complying with the procedures foreseen in the labour code,
  • have seniority in the last job held before the cessation of activity of at least three successive years with the same company, during which they have been declared to the national social security fund and the contributions due have been paid,
  • Recognition of the economic or technological nature of the cessation of work (or the permanent and sudden closure of the company without complying with the procedures stipulated in the labour code) must be established by a certificate issued by the competent labour inspectorate ,
  • justify the non-resumption of a remunerated activity subject to a social security system during the period of cessation of work,
  • not being in a situation where they are eligible for a retirement or disability pension,
  • being registered at an employment office without having been offered a job by an employment office or other official authority. However, the job offer must be individual, territorially restricted and must include a salary not lower than the amount of aid,
  • the aid is not granted in the event of termination of the fixed-term employment contract or illegal strikes.



Leave a Reply

Your email address will not be published. Required fields are marked *



4 Rue Mahmoud El Materi Mutuelle Ville 1002 Tunis
+216 71 892 525

Contact Us

EL AJERI LAWYERS is selected “International Transactions Law Firm of the Year in Tunisia” in the 2016 Global Law Experts Annual Awards

Follow us:

Copyright © El Ajeri Lawyers 2020 By Parcus