Law firm specialising in employment law
and social security law.
Law firm specialising in employment law
and social security law.
The act of 2 August 2021 consolidating occupational health prevention, also known as the "Health Act", finally came into force on 31 March 2022 (for most of its provisions).
Column published in actuEL RH can be read by clicking on the link below: https://www.actuel-rh.fr/content/le-document-unique-devaluation-des-risques-professionnels-quels-changements-depuis-la-loi or can be read below.
Among the many measures introduced by the act, several concern the single occupational risk assessment document ("DUERP"). The changes to this document form part of the most symbolic of this act. In addition to the measures provided for by the act, an implementing decree of 18 March 2022 has revised the procedures for updating, making available and storage of the DUERP.
What do these changes involve? When should they be implemented? We will focus on the six key measures in this area.
From 31 March 2022, the single occupational risk assessment document must, in addition to listing the occupational risks to which employees are exposed, ensure the “collective traceability of such exposure”.
This first measure is entirely in line with the spirit of the text, which provides for a consolidation of prevention measures and also improved traceability of employees' exposure to occupational risks. The objective is to enable employees to be able to find data concerning exposure to occupational risks several years after exposure to a risk (type of risk, duration of exposure, etc.) in order to determine, for example, the causes of a possible disease which occurs several years after exposure to the risk.
Henceforth, while all companies are still obliged to have a DUERP regardless of the headcount, the single occupational risk assessment document must be updated annually only by companies with at least 11 employees from 31 March 2022 (Article R.4121-2 of the French Labour Code).
However, the two other cases for updating the single occupational risk assessment document remain compulsory for all companies, namely (i) in the event of a major planning decision making changes to health and safety conditions or working conditions, or (ii) when additional information relevant to the risk assessment is brought to the employer's attention. With regard to the latter point, it should also be noted that the wording of the text previously required the employer to update the single occupational risk assessment document in the event of “collection” of additional information and not when such information was “brought” to its attention. This amendment is perfectly in line with the philosophy of the texts which aim to extend the employer's health and safety prevention action.
Updating the single occupational risk assessment document will trigger the obligation for the employer to simultaneously update the annual programme for the prevention of occupational risks and improvement of working conditions (PAPRIPACT) for companies with at least 50 employees, or the list of prevention action recorded in the single occupational risk assessment document for companies with less than 50 employees (new requirement under the Health Act - Article L.4121-3-1 of the French Labour Code). However, the decree of 18 March 2022 specifies that this update must be carried out for each update to the single occupational risk assessment document “if necessary” (Article R.4121-2 of the French Labour Code).
As a reminder, the Health Act reshaped the procedures relating to access to the single occupational risk assessment document by specifying that it should be made available to “workers, former workers and any person or body that can demonstrate an interest in having access to it”. The list of these persons and bodies was to be established by decree (Article L.4121-3-1 of the French Labour Code). Article R.4121-4 of the French Labour Code now provides that this document and previous versions must be made available to (i) employees and former employees only in the versions in force during the period of their employment with the company, and (ii) the entire occupational health and prevention service (“SPST”).
Such provisions consequently grant access to the single occupational risk assessment document to persons belonging to the SPST who up until now could not be recipients if they were not healthcare professionals, such as for example, occupational risk prevention workers, ergonomists, toxicologists, etc.
All versions of the DUERP will obviously remain accessible to the persons previously covered by the texts, namely elected representatives of the CSE, officials at the labour inspectorate, social security prevention services, branch occupational health and safety organisations, and radiation protection inspectors.
In addition, with regard to the obligation to disclose a copy to employees and former employees, it should be noted that disclosure of earlier versions of the single occupational risk assessment document prior to the document in force on the date of their request may be limited only to information on their activity.
This extended access to the DUERP will apply only to successive versions of the single occupational risk assessment document in force on 31 March 2022 or drawn up on or after that date.
Finally, it should be noted that under the terms of Article L.4121-3-1 of the French Labour Code, the DUERP must no longer be made available but sent to the SPST, along with successive updates.
The law now requires storage of successive versions of the single occupational risk assessment document for at least 40 years from the date of drafting (Article R.4121-4 of the French Labour Code).
In this context, the single occupational risk assessment document and updates must be filed electronically on a digital portal, in line with a progressive schedule: from 1 July 2023 for companies with at least 150 employees and from 1 July 2024 at the latest for companies with less than 150 employees (a decree is still awaited to set the application dates of these provisions).
It should also be noted that the obligation to store successive versions of the single occupational risk assessment document applies from 31 March 2022 for versions in force from this date. Pending the launch of the digital portal (in this respect, a decree of 5 April 2002 has just defined the specifications for the roll-out and operation of this portal whose deployment deadline is 31 May 2022), companies must store the DUERP and successive versions in paper or digital format (Article R. 4121-4 of the French Labour Code).
Last but not least, the Social and Economic Committee must be consulted on the DUERP and updates from 31 March 2022 (Article L.4121-3 of the French Labour Code). Until now, this was not an obligation (this issue was decided by the Employment Division of the Court of Cassation in a ruling of 12 May 2021, no. 20-17.288 on an update in the context of the Covid-19 pandemic).
In companies with at least 50 employees, the employer must present the prevention programme to the CSE as part of the consultation on the company's social policy, working conditions and employment (if no collective agreement exists providing otherwise). In addition, a new feature requires the list of prevention and protection action to be presented to the CSE of companies with less than 50 employees (Articles L.2312-5 and L.2312-27 of the French Labour Code).
With all these new measures, the DUERP, which returned to the centre stage with the Covid-19 pandemic, may raise new questions in the coming months. Undoubtedly, all these provisions clearly demonstrate the government’s intention to bring about a profound cultural change with regard to health and safety at work.