The decree of March 25, 2020 n° 2020-325 relating to partial activity allows the employer to obtain the opinion of the CSE after his request for partial activity when his request is based on exceptional circumstances (case of Covid- 19).
It is specified that the opinion of the CSE must be sent to the Direccte within a maximum period of two months from the said request.
This expected derogation from the CSE's usual consultation rules was accompanied by another modification, less mentioned, which could nevertheless have significant consequences for companies with fewer than 50 employees.
Article 1 of the said decree has in fact made the following modification to paragraph 6 of Article R. 5122-2 of the Labor Code relating to the opinion of the CSE which must accompany the request for partial activity:
« It [the request for partial activity] is accompanied by the opinion previously issued by the social and economic committee, if the company has one.. »
To measure the scope of this modification, it should be noted that paragraph 6 of article R. 5122-2 of the Labor Code was previously drafted in such a way that it seemed to target only companies with more than 50 employees, which which made it possible to consider that only the latter were affected by the obligation to seek the opinion of the CSE.
This paragraph was indeed worded as follows “ it [the request for partial activity] is accompanied by the prior opinion of the social and economic committee in application of article L. 2312-1 . However , this last article concerns companies with at least 50 employees.
The decree of March 25, 2020 thus seems to extend the obligation to consult the CSE to companies with fewer than 50 employees.
This situation can pose a particular difficulty for companies that have not set up the CSE when they were legally obliged to do so.
The question arises of the Direccte's handling of requests for partial activity by companies which have not set up such a CSE or which do not justify a deficiency report.
It is not to be excluded that a refusal could be opposed by the Direccte in such a situation or that this one withdraws a decision of authorization which it would have granted.
