law, right of withdrawal, outdoors

During periods of extreme heat, the employer is required to implement all necessary measures to protect the health of its employees, by adapting work to thermal risks, indoors and outdoors, recalls the Ministry of Labor. In the event that Météo-France triggers a red “heatwave” alert, this safety obligation requires the employer to carry out a daily and individualized reassessment of the risks, depending on the evolution of temperatures, the age of the employees and the arduousness of the tasks. What are its exact legal obligations? What does the Labor Code stipulate? What are the specific rules for outdoor workers or the construction sector? Is teleworking becoming compulsory? And what are the possible remedies for the employee if the company does not respect its protection obligations? Update on the legislation and measures applicable this summer.

Can we resort to teleworking in the event of a heatwave?

The Ministry of Labor regularly reminds in its heat wave management guides that in the event of extreme heat, the employer must favor teleworking when possible. In the event of “red alert”, a sign of extreme heatwave, the use of teleworking must be systematized for all tasks that allow it. The list of employees benefiting from teleworking must also be re-examined, paying particular attention to vulnerable people: pregnant women, people suffering from chronic pathologies or with disabilities, etc.

What work instructions in red alert departments?

Météo France can place certain areas of France on “red” alert in the event of an “extreme heatwave”. In this case :

• the employer must reassess exposure risks every day for each of its employees depending on the evolution of the temperature and the nature of the work to be carried out
• the activity must be suspended if the precautions taken are insufficient to guarantee the health and safety of workers
• If this is the case, companies can resort to partial activity device or recovery of lost hours.
• In the construction sector, employers can benefit from the “bad weather” system.
• L’adjustment of the workload, schedules and more generally the organization of work must be adjusted to guarantee the health and safety of workers throughout the duration of the red alert period;
• The list of employees benefiting from teleworking must be re-examined, paying particular attention to pregnant women, people suffering from chronic pathologies or those with disabilities, etc.

Right of withdrawal: can we refuse to work in the event of a heatwave?

Above 30°C for sedentary activity, and 28°C for work requiring physical activity, heat can constitute a risk for employees

The Labor Code does not mention a maximum temperature beyond which it is possible to exercise right of withdrawal. “However, above 30°C for sedentary activity, and 28°C for work requiring physical activityheat can constitute a risk for employees“, indicates the INRS on its website. In fact, an employee could exercise their right of withdrawal if they consider that they are in a situation of endangerment and that his employer has not put in place preventive measures. “We assess it on a case by case basis. It is necessary to see if the employee had a good reason to exercise it. He must provide proof of the danger to which he is exposed and prove that his employer has not provided him with measures to protect him from sunlight and high temperatures.“, recalls Me Rocheblave, still quoted by Midi Libre.

What are the employer’s obligations in the event of a heatwave?

The definition of heatwave or extreme heat is not mentioned in the Labor Code. “It’s a matter of common sense (…) There is no provision saying “at 28°C, at 30°C to 31°C or at 32°C, you must do this or that“, indicates Me Éric Rocheblave, specialist in labor law, interviewed by Midi Libre on June 16, 2022. Nevertheless, employers have a security obligation. They must not put their employees in danger. They are therefore obliged to take several precautions in the event of extreme heat and heatwave episodes:

• Develop an internal management plan and a single risk assessment document (in accordance with the labor code) and designates a person responsible for preparation and management
• Control buildings and equipment (blinds, ventilation, cooled rooms, thermometer, etc.) and identify the most exposed workstations
• Inform all employees of prevention methods and warning symptoms (dehydration, heat stroke, sun exposure, etc.)
• Check drinking water reserves, particularly in the construction industry (3L of water per day per worker) and make drinking water available (individual water bottles or water point with cups, regularly disinfected)
• If necessary, arrange working hours to limit exposure to heat (work an hour earlier in the morning for example)
• Provide means of protection and/or cooling : cooled or fitted premises (construction), misters, drinking and fresh water dispensers.
• Instruct employees and their supervisors to report any abnormal situation to the safety manager.

What does the law say for outdoor workers?

Employees who work outside such as gardeners, construction workers, agricultural workers…can be exposed to severe thermal stress in summer. Employers must put certain measures in place:

► General measures:

• Protect workstations from high heat.
• Make available to workers a suitable rest room climatic conditions or arrange the site in such a way as to allow the organization of breaks in equivalent safety conditions.
• Make available to workers At least 3 liters of fresh drinking water per day per employee
• Ensure that the wearing of personal protection and protective equipment machines are compatible with high heat
• Take the adequate organizational measures so that the work is done without exposing employees

► In case of red alert which corresponds to a proven exceptional heatwave, very intense and lasting, the employer, as part of its security obligationcarries out a daily reassessment of risks incurred by each employee according to the temperature and its evolution during the day; of the nature of the work to be carried outparticularly outdoors or in thermal environments already presenting high temperatures, or involving a physical load; of theage and health status of workers. L’adjustment of the workload, schedules and more generally the organization of work must be adjusted to guarantee the health and safety of workers throughout the duration of the red alert period. If the assessment reveals that the measures taken are insufficient, in particular for work carried out at a very high temperature and involving a significant physical load (roof insulation or covering workrepeated handling of heavy loads, etc.), the employer must decide to stop work.

What are the worker’s rights if obligations are not respected?

According to the Ministry of Labor, the employee who notices that no measures have been taken would consider that the measures implemented appear possibly insufficient with regard to the climatic conditions observed, would be refused by the employer when its requests for accommodation with regard to the provision of fresh water and sufficiently ventilated premises, would be justified in referring the matter to the labor inspection services who will appreciate whether the climatic circumstances and the situation in which he was placed justified or not the implementation of the provisions provided for in articles R. 4225-1 et seq. of the labor code. Depending on the size of the establishment, the employee also has the possibility of contacting staff representatives (CSE).

What does the Labor Code say?

These are mainly articles L. 4121-1 (employer’s safety obligation), R. 4225-1 (provision of fresh water) and R. 4223-13 (air renewal and protection against heat) of the Labor Code which establish the legal framework. The Code recognizes extreme temperatures as major occupational risk factors. All up-to-date legislation is freely available on the Légifrance website.

Sources: Ministry of Labor website “Heat and heat waves at work: precautions to take” / Working in high heat in summer, INRS