Alternative electrical equipment, time changes, telecommuting… With the threat of tension hanging over the electricity grid this winter, companies have to think about the measures to be taken in the event of a power outage. But the uncertainty surrounding these cuts and the expected notice period complicate their task considerably.
Nobody knows if they will take place, or when they will take place, or where they will take place. Yet the very possibility of implementing these power outages on the ground raises profound questions. The government has tried to allay concerns by drawing up a specific crisis plan detailing the various consequences of these power outages and the measures that will be taken. But there are still many unknowns, especially on the measures that companies will have to and can take towards their staff.
For some companies, a power outage could have serious consequences and lead to the loss of part of the production. But beyond the logistical or technical challenges closely related to production, it is also the organization of work and employee management that arises for employers.
“There is nothing in the labor code that specifically provides a provision in this particular case,” begins recalling Me Eric Rocheblave, a lawyer specializing in labor law. Electricity, on the other hand, can be considered a work tool like a hammer or a computer.
“But the company has an obligation to employ employees, pay them wages and provide them with the tools they need to do this job,” he says.
“The blackout is therefore a problem for the employer: it is up to him to make arrangements for his employees to work and receive remuneration,” he says.
Especially since, according to the specialist, it would not be a case of force majeure which exempts the employer from providing work tools to its employees.
Generators, the best option?
This can come through the upstream development and implementation of a business continuity plan (BCP) or through less formal reflection and anticipation of this type of load shedding. Providing a generator to compensate for power outages can also be a good solution to ensure business continuity. It is mandatory in some strategic companies, such as airports in particular.
“There are two populations of companies. Those considered critical – defense and healthcare companies (hospitals, nursing homes, etc.), data centers – which have been equipped for some time because they have legal obligations to do so, or their insurance companies require it. And then there are the others , which are very poorly equipped”, explained Lenaïk Andrieux, president of the Groupement des industries des gensets (Gigrel), in the columns of the EchoesDecember 5th.
For standard businesses, despite a recent increase in requests for quotes, the equipment fee is still very low. At issue, a significant cost to assume for small facilities where such a facility would only be used in a very hypothetical scenario.
The notice period, a headache
Failing to equip themselves, companies will have to sit on lost working hours or reorganize working hours by shifting, for example, the schedules of their employees.
“But the complexity, from a business point of view, comes from the notice period announced by the executive,” underlines Benoît Serre, vice president of the National Association of Human Resources Directors.
Although it is preceded by a first Ecowatt alert two days before, the effective implementation of these cuts will only be confirmed the day before for the same day.
A short period of time which is not even compatible with the notice period stipulated by the labor code in particular for changes in working hours. “Any change in working hours must be decided in advance and in a way that allows the employee to organize himself,” recalls Eric Rocheblave.
The option which would consist in urging employees to take holidays or RTT during periods of interruption is subject to the same limits.
“These deals can’t theoretically be made overnight,” says the lawyer. “These agreements will then be made informally outside the legal framework,” he anticipates.
As regards the exceptional implementation of teleworking on closing days, it could also be considered for activities that allow it. This option has the advantage of responding to a series of complex consequences for employers to grasp, such as “the closure of schools but also the functioning of elevators, heating, security servers, …”, lists Benoît Serre.
Teleworking, a solution depending on the case
But, even in this case, such a measure cannot be improvised. For companies that have been using it regularly since the health crisis, it will be easy. On the other hand, for others who have never implemented it, it raises legal questions. “Teleworking theoretically requires workstation ergonomics and consultation with occupational medicine,” says Me Rocheblave. Not to mention, even employees whose homes are in a load shedding zone won’t be able to work remotely.
Finally, as surprising as it may be on paper, the establishment of a partial common law activity for such a short duration of load shedding (2 hours maximum) does not seem to be excluded. The electricity cuts are in fact considered by the government as an exceptional but possible reason for resorting to partial unemployment, in the context of the economic and social resilience plan drawn up in early January to deal with the consequences of the war in Ukraine.
“In the event that a company directly affected by the reduction of the load is unable to adjust the working hours of its employees to deal with this situation, it is possible, as a last resort, to mobilise, for the duration of the reduction of the load and, where applicable, for the time necessary to restart the production units, the partial activity mechanism of common law, on the basis of ‘any other exceptional circumstances’ (buried ‘load shedding’)”, indicates the place of the Ministry of Labour, the content of which was updated on 7 December.
