My name is Michel Ledoux I am a lawyer at the Court
of Paris, specialist in social law, social security law and social protection
and so, I have been interested for twenty years in occupational health.and so, I have been interested for twenty years in health
at work. Initially I returned to this subject by the law of Social Security
and then gradually over the years, and also depending on the interest
of our fellow citizens in these topics the firm specialized on health issues
in health at work so physical health, mental health and all liability issues,
civil liability and criminal liability.
Occupational health law
in 2016 has taken on considerable importance, occupational health is now at the heart
heart of professional life for one simple reason is that for years, for
decades, when there was an attack on health at work it was often
often linked to fatality. It kept repeating that one did not make "omelette
without breaking eggs", that "it was the ransom of the progress", since a few
few years the social body does not accept anymore the attacks on the health in and even
even less damage to health at work. When a significant attack occurs,
it is no longer linked to fatality but is experienced as the mark of
a real social dysfunction. And society, citizens demand responsibility researches,
and we will see that, as a result, the law which
ultimately reflects the state of mind of a society at a given moment, has evolved considerably
and that companies, in particular, are now facing increasing obligations
to protect employees at work.
When we talk about responsibility for
occupational health we must already distinguish globally between two major families of
responsibilities, we have on one side the civil responsibility and on the other hand the criminal responsibility.
Civil responsibility, what's the point? This allows to compensate
the victims. In all the countries of the world when there is an attack on health, we are going to
to compensate the victim by paying him money, that money goes into the victim's pockets,
that is called damages, so that's the civil responsibility.
And then criminal responsibility is our responsibility as a citizen
with respect to the fundamental rules of the country in which we live, there are rules
of living in common minimum, or maximum elsewhere, and these rules are sanctioned if necessary
when they are not respected by the courts. And more specifically in occupational health
by the correctional courts. And there is a character
who is responsible for ordering investigations, supervising investigations, and, where appropriate,
having offenders punished in court. This man is called,
it is the generic term, the public prosecutor. On the side of civil liability, actually
things are solved in the form of payment of damages and interest; and then in the field
of occupational health, who finances the risk of an accident at work and an occupational disease?
These are the employers. Only employers contribute to compensate employees
who have suffered an accident at work and an occupational disease. And the employers contribute to the URSSAF
and precisely the accident rate of the work, it is a rate which is calculated by the CARSAT
and which is function of the number and the gravity of the accidents which occur in an establishment.
In other words, in a company or an establishment, the more accidents you have,
the more serious the accidents, the longer the work stoppages,
, the higher the medical costs, the higher the disability rates, and
the more the accident rate of work increases, the more the social charges increase. And
we understand that the goal was to make the link between funding and
and prevention. There is no prevention, there is more damage to health, it is
more expensive; we do prevention, there are fewer health problems,
it costs less. So that is the civil liability and who at work, I repeat,
, is financed by the employer through his payroll taxes. As for the criminal responsibility,
then, when it is engaged, and the responsible persons that it is the company
as a legal person or the leaders, they risk being sent to a
a correctional court and to be condemned, and well in the worst case to imprisonment
and / or fines. In criminal cases the Criminal Court will sentence the employer
to imprisonment or conditional sentence, suspended most of the time, and then also
fines that can be extremely important, for example in case of homicide
involuntary with deliberate failure one risks today up to 5 years of imprisonment
and 75 000 euros of fine. So we see that the stakes are very important. And then
then if I talk about employers, legal entities, companies, for twenty years now,
, it should be known that legal persons, companies
in the clear, are criminally responsible. In other words today in case of "glitches", in
case of accident, in case of recklessness, negligence, we can sue the leaders,
natural persons, but we can also sue the company as a legal person.
And clearly when one has his name in the newspaper for an injury to health,
for that matter or to the environment, as a legal person it is not very good
for business, and therefore it endangers not only actually the cash
, but also its brand image. And actually for a few
years we have some significant accidents, I think AZF for example, we have attacks
on physical or mental health that involved known companies, and naturally
it has deteriorated their brand image, and these are therefore extremely important issues
today. It is clear to what extent the prevention of occupational hazards
is of considerable importance.
Any injury to health at work is not
an inexcusable fault of the employer. When an accident occurs at work or
an occupational disease, when the professional character is recognized in the general scheme
scheme by the CPAM, the victim is indemnified by precisely the CPAM; however, where
an injury to health is due to negligence on the part of the employer or to a breach of health and safety rules,
the victim may plead the inexcusable fault of the employer.
This happens in a special court called the Social Security Court,
and if the inexcusable fault of the employer is recognized,
the victim will receive additional damages, which will complement
what is paid by the CPAM. In a nutshell, we are going to increase his work accident benefit and we
will compensate the victim for a number of counts of harm, such as physical suffering,
mental suffering, aesthetic prejudice, etc., etc. In the end, it is the offending company
that pays in other words it is the company that, by its negligence, caused the damage
damage to health, which will finance these additional damages. The inexcusable fault,
still a few years ago obeyed a very spectacular definition, it
was necessary that the victim demonstrates a fault of an exceptional gravity. You must know
that since February 28, 2002, there will be inexcusable fault of the employer only
only on two conditions: one when the employer became aware of the danger and that he did nothing
only on two conditions: one when the employer became aware of the danger and that he did nothing
of the danger, because he has an obligation to know the safety rules. And second
when the victim will show that the employer has not taken measures
measures to preserve it. In other words, it is no longer necessary
for a fault of exceptional gravity, it is sufficient that the employer was aware of
and I repeat, that the employer has the obligation to assess the risks
so be aware of the dangers. And of course the victim must also
show that the employer did nothing, did not take the measures
to preserve it. That's the civil liability, it's the inexcusable fault of the employer
it is the inexcusable fault of the employer and the inexcusable fault of the employer, that can be very expensive since
when the consequences of an accident or an illness are very heavy, the Damages and
interest obviously can be extremely important, and all this can be very
expensive for a company. Now on the side of criminal responsibility, there
there must be the offense exists, for example in the case of homicide or involuntary injury,
manslaughter for example it is the fact, for an employer by carelessness,
negligence, clumsiness, inattention, breach of an obligation of prudence and security,
for example imposed by law or regulation, for example the labor code, to provoke
the death of others. And in this case, I said it earlier, it can go up
to 5 years of imprisonment and 75,000 euros fine. But what is important to
to note is that since 2002 the Court of Cassation has laid down a fundamental principle
principle which is the following: "Under the employment contract which binds an employer to his employee,
the employer is bound to with regard to his employee to an obligation of security of
result", obligation of security of result, which clearly means that
the employer is obliged and obliged to ensure that his employee is not
not sick or injured at work . And if the employee is suffering from a pathology
for example and much much more easily than before we will be able to seek
the responsibility of the employer. It is a true revolution that obligation
of result, it has crossed the whole field of the social right and it is now
the essential base of the questioning of the responsibility of many companies,
both besides in front of the court Social Security cases, but also
before the Labor Court, and also before the administrative courts.
So you see, in 2002, we experienced a real revolution and this revolution did not
fall from the sky, it is the consequence of a very strong expectation from the society to
to ensure that health at work is safeguarded.
It should be known that the accident rate of work and occupational disease, it is a rate which is calculated by the CARSAT
or in the Paris region the CRAM. It should be known that only companies finance
the occupational risk and the accident rate of work, it depends on the workforce
of the company. But when the business is a large business, this accident-at-work rate
is a function of the number and severity
severity of work-related accidents and occupational illnesses that occur over a period of time. In other words,
In other words, in a company, the more accidents and occupational diseases,
more precisely, more work stoppages attributable in particular to this occupational disease
re long, plus medical expenses that will be spent to treat the employee, and the
higher the disability rates, which correspond to the reduction in the working capacity
of an employee, the higher the accident rate of work will increase. And the AT / MP rate,
it is included in the social charges, and therefore more payroll taxes will increase,
, moreover it is directly done on purpose since, after the war, when the system was flattened,
wanted to make the link between funding and prevention. When
When we do not do prevention, we necessarily have more health problems, we pay more.
When we do prevention, we necessarily have fewer
fewer health problems, we pay less. It is clear that we wanted to make employers aware
of the prevention of occupational risks, I was going to say by the wallet, and therefore
an accident rate of work it can be very expensive, considerably increase
the cost of work since the social charges increase and this can sometimes even lead
lead companies to stop any activity, since in this case, there is no interest,
margins are reduced and it can turn into a financial disaster.
The general principles of prevention are extremely important.
It should be known that the principle of occupational health is that the responsibility
rests on the shoulders of the employer and the employer is required to protect the physical and mental health
of its employees. Logic also militates in this sense since
it is the employer who has the economic power, the disciplinary power, it is he who
organizes the work and therefore it is on him that lies the responsibility. And then in
the hat of the fourth part of the Labor Code, the one that deals with occupational health,
exists what is called the general principles of prevention which are finally a little
"ten commandments" of the employer. What is expected
of the employer? And the employer before, when entrusting a job to someone,
must before the start of work, identify all the risks that the operator
will be confronted, the first step. Step two, he is asked to remove,
once he has identified all the risks, the risks he can remove. And then third step,
behind there are the risks that we can not delete, that's very important,
we can not remove all occupational risks, we must produce
wealth, we must work well, it Sometimes you have to implement products that can
be dangerous, so there are risks that can not be removed. If we
can not remove them, that's the extra step, we can sometimes reduce them,
limit them a bit, plan them a little bit, and then last step, there is the hard core
of the risk, we can not not to suppress it, we can not reduce it, we have to take it,
we have to go, and we ask the employer to put in front of this residual risk
the appropriate security measures, and these security measures, when we go to the bottom of things,
they do not ultimately aim to make the accident impossible, they aim
to make the accident as unlikely as possible, and the least serious
possible, if unfortunately it occurred. This is the general principles of prevention
and these principles weigh on the employer. And then, when it comes to occupational health,
the employer must rely on his occupational health service, on the occupational doctor,
, whose role is to advise the employer and to advise the employees. It must be
equidistant between the employer and the employees. It is the knowing,
the specialist, it is the man who knows the problems of health at
at work, it is a doctor, and it is all the difficulty besides and the very important role
the occupational physician: it is to be the advisor of the employee and
and the employer in order to preserve the health at work and to respect effectively
the general principles of prevention.
The responsibility of the occupational doctor, so he is occupational physician and he is also
obviously a doctor, so already fundamentally it is clear that as a doctor,
in case of misdiagnosis, the occupational physician could engage his personal responsibility.
That said, everything related to the functioning of an occupational
health service, for example the regularity of medical visits, is the responsibility
of the employer. The responsibility of the occupational health doctor is only
a very subsidiary responsibility in relation to the absolutely fundamental responsibility of the employer who is in charge,
who has the responsibility to enforce, relying on the occupational physician,
effectively hygiene, health, safety, in his business. So have
occupational doctors already been prosecuted? It can happen, for example
example in the so-called "asbestos case", some labor doctors who are currently
under investigation for the offense of homicide, involuntary injury, non-assistance to
person at risk, to have in all cases at the level of the indictment,
not to have done their work of reporting, not to have attracted the attention of some
employers on the health catastrophe which was announced, not to have warned
employees of the risks and not offered themin every case solutions
to protect themselves. We have some doctors at work who are currently under investigation.
? Except for some vaccinations made compulsory by the Public Health Code, vaccination is optional. In other words
we can not impose an employee a vaccination. So we have been fortunate for some
years to have an opinion of the Superior Council of Public Hygiene which gives indications
indications to the occupational doctors and which suggests to the occupational physician, to propose vaccination
in a number of situations. And that goes back, we return to the general principles
of prevention, in other words, when an employee is obviously exposed
to risk, when this exposure is documented, when other employees have already possibly
revealed pathologies on these work positions, and in particular when
an employee carries out an activity prescribed by the table of occupational diseases,
the occupational physician in this case there must propose, or may propose in all
cases, a vaccination. This means that, conversely, if we have been confronted with an
an employee who is obviously exposed to risks, to a position documented as an exhibitor, with
a specific personalized exposure, and which the occupational doctor would not propose
in this hypothesis of vaccination, or would suggest the employer also
to recommend vaccination, one could imagine that this could be considered,
especially if the consequences are serious, that this could be considered as a
especially if the consequences are serious, that this could be considered as
criminal liability, in particular for crimes of homicide or unintentional injury.
In certain situations this could be considered as a fault
fault of the physician, a gross negligence on the part of the occupational doctor, that is what can be
said. But, after all, I repeat that it is the employer who is at the forefront
of occupational health, and the occupational physician is the advisor
to the employer and the employee. It is his responsibility to give the employer medical information
enabling the employer to take the necessary decisions
to protect the health of its employees.
: So, in a practical way, let us imagine
an employee who develops a pathology related to leptospirosis. First situation: the
the employee, he was offered vaccination he refused. He falls sick, his illness
his illness will be professional, it will remain an occupational disease, on the other hand it will be difficult,
a priori, to demonstrate and the possible inexcusable fault of his employer, but obviously
provided that the employer justifies taking collective measures , individual
prevention, protection. If the employer has provided PPE in this case, the employee
employee if he refused the vaccination, will have difficulty to recognize the inexcusable fault
of his employer, and thus to obtain damages and interests complementary to the recognition
of his occupational disease. Second hypothesis: the employer refuses vaccination, explicitly refuses
vaccination. In this case the employer has to worry, because
if the employee falls ill it will be an occupational disease obviously, but in this
case, much more easily than in the previous situation, the employee will
will be able to invoke the inexcusable fault of his employer, specifically,
even though the occupational doctor had possibly suggested vaccination,
and although the employer refused this vaccination. This will probably be considered
an inexcusable fault of the employer and this will have significant financial consequences,
since the employer will have to pay damages. Third hypothesis:
the occupational doctor does not propose vaccination, even though
we would be in a situation in which vaccination should have been proposed if we follow
the advice of the Superior Council of Public Hygiene. In this case, for the employee
it will be an occupational disease for him, and probably he can again, there
it will be an occupational disease for him, and probably he can again,
Since in this case, the occupational physician who is still an employee of the employer,
would ricochet the responsibility of his company, and while
the employer, against behind, would be empowered to make reproaches to his doctor
of work which even when one would return in the forecasts of the Council Superior Public Hygiene,
and well the doctor of the work would not have suggested this vaccination.
There, there could be a possible dispute between the employer and his doctor.
Obviously we do not fit in the field
right of the Social Security, there will be no occupational disease, there
there will be no inexcusable fault of the possible employer, against the employee could
necessary engage a proceedings before the Conseil des Prud'hommes by reproaching
the employer for not having complied with his obligation of security of result.
Then there is also always on the same basis, a procedure that
is not yet completely stabilized, with a case law that "floats" a little more,
the employee could when he is obviously exposed to the risk ask before
the Conseil des Prud'hommes, the conviction of his employer for the injury of anxiety.
It is a prejudice that was invented by the Court of Cassation in May 2010
2010 during the so-called "asbestos" case, but which could be
transposed to situations of exposure to proven risk, and therefore even if the employee
does not develop a pathology, he could demonstrate that he was contaminated without
the disease appearing, and therefore claim compensation for his anxiety damage,
which is a cause for concern, anguish. The employee is not sick
but he has good reason to fear to develop a pathology and he could, we will see
what the case law will do, in the coming years, so ask
compensation for his injury anxiety.
If he falls ill, it will be an occupational disease and the employer will pay for his accident at work rate
rate the consequences of the recognition of this occupational disease. It should
be known that if the victim, if the patient, has at least 40% of incapacity or more, it
will cost to the employer currently, it costs on the employer account 480 000 euros.
And so that's what the employer will pay, even if his employee refuses
refuses vaccination. I would add that even in this hypothesis, the employer will have an interest
in being able to demonstrate that he has provided his employee with collective or individual protection equipment,
otherwise he will still be liable to an inexcusable fault on the part of
employer, even if the employee, I repeat refused the vaccination.
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