Preparing for the post-Covid world Aside from the health issues, which are tragic and clearly override every other consideration, the business world has been affected by major legal problems. What will the repercussions be, and how are they to be dealt with?
The relaxation of lockdown and the return to work is requiring employers to implement specific measures to limit the risk of spreading infection and allowing a resurgence of Covid-19. At the same time, financial aid programmes are being introduced to support economic recovery, such as the Prévention COVID subsidy for microenterprises and SMEs, the deferment/spreading of social security and tax expenses, or prolonging the partial activity scheme as part of a recently updated government support programme. Not forgetting the new patterns of work organisation and their impact on psychosocial risk (teleworking, working time annualization and flexibility, in particular), plus the more overarching concerns relating to workplace safety.
Bringing all these levers into play is a priority. In this particular context, the responsibility and the role of employers is central, and the sources of possible conflict many. It is absolutely vital to keep up an active and constructive dialogue with employees in order to retain their trust and their investment in the corporate goals.
Such dialogue will also enable employers to tailor their activity and their organisation to any changes in the health and economic situation. Negotiations on teleworking, for example (something that looks set to continue, and requires an appropriate management framework), on forward career planning (GPEC) or on salaries will also play a key role.
Similarly, collective performance agreements will be helpful in adapting working hours and remuneration, in particular. Lastly, constructive employee dialogue will ease the path of any reorganisations that may be necessary, along with the adoption of appropriate support measures.
Reinventing the world of work
Setting aside for a moment all the negative repercussions, we should emphasise the considerable adaptability demonstrated across the health sector, industry players, healthcare staff and governing bodies alike. In the case of clinical trials, for example, we saw instances in which ANSM authorisation and a green light from an Institutional Review Board (CPP) could be obtained in a matter of only a few days.
So it really is a question of where there is a will, and resources, there is a way! Let us hope that this readiness to act promptly continues in the future and that significant resources are devoted to
facilitating the introduction and conduct of clinical trials in France. If this key public health issue is to be addressed, no time should be lost in launching an in-depth review of the management of clinical research, which has become increasingly inefficient as a result of a series of piecemeal reviews.
The Covid-19 epidemic also highlighted the importance of digital tools in preventing and managing the outbreak, and now as we emerge from lockdown. They have proved invaluable in areas such as personnel management, support for healthcare professions in their management of the crisis or
in collecting and analysing the health data needed to get to grips with the epidemic, as witnessed by the StopCovid app and the management of coronavirus clusters.
Widespread recourse to telehealth tools, authorised on exceptional grounds, has shown just how valuable such techniques could be. So where do we go from here? Do we revert to the status quo ante, with its safety requirements that continue to be essential, or do we use the lessons learned from this extraordinary period to adapt certain aspects of the law that are undoubtedly too restrictive? Watch this space.
The health sector under the spotlight
The Covid-19 crisis and the lockdown measures introduced by the government put a huge strain on the performance of certain contracts. There has been no shortage of contracting parties and legal counsel claiming force majeure, on the grounds that the crisis was unforeseeable and unavoidable within the meaning of articles 1231 1 and 1218 of the French Civil Code.
During previous outbreaks, such as the chikungunya virus or dengue fever, many courts ruled against the application of force majeure. In our view, the scale of this pandemic and, above all, the measures introduced to stem its spread, are of a wholly different nature that should enable force majeure to be invoked, subject, naturally, to the merits of each case.
A decision to this effect has just been handed down by the President of the Paris Commercial Court in a dispute between EDF and Total Direct
Energie, concerning the implementation of a framework agreement on electricity feed-in tariffs. This ruling opens the way to recognition of the Covid-19 crisis as a case of force majeure.
It is important to note, however, that in this particular instance, the terms and conditions of force majeure were established contractually.
This is a major issue for the future: while such a pandemic and the resulting lockdown measures could be considered as wholly unforeseeable in March 2020, this will certainly no longer be the case in the future.
Specific clauses will need to be drafted to reflect the new contractual balances that have yet to be reinvented.
New contractual balances