Heat wave and work: the right of withdrawal possible on red alert?

[Mis à jour le 17 juin 2022 à 12h34] In period of strong heat and heat wave as is currently the case in France, the employer must put in place the measures necessary for the protection of health of its employees, taking into account the risks associated with high temperatures. What are its obligations ? What does the law and the Labor Code say? ? And for employees who work outside ? In the sector of construction ? What recourse if the employer does not respect his obligations? Legislation and measures.

Right of withdrawal: can you refuse to work in the event of a heat wave?

Above 30°C for a 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 one’s right of withdrawal. “Nevertheless, above 30°C for sedentary activity, and 28°C for work requiring physical activityheat can constitute a risk for employees“, noted INRS on its website. In the facts, an employee could exercise his right of withdrawal if he considers that he is in a situation of danger and that his employer has not implemented preventive measures. “We assess on a case-by-case basis. It must be seen whether 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 the sun, high temperatures“, recalls Me Rocheblave, always quoted by Midi Libre.

What are the employer’s obligations in the face of heat?

The definition of heatwave or extreme heat is not mentioned in the Labor Code. “It is a matter of common sense […] There is no provision saying “at 28°C, at 30°C at 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 safety bond. They must not put their employees at risk. They are therefore obliged to take several precautions in the event of high temperatures and heat waves:

• Develop an internal management plan and a single risk assessment document (in accordance with the labor code) and appoints a person responsible for the preparation and management
• Control buildings and equipment (blinds, ventilation, cooled rooms, thermometer, etc.) and identify the most exposed workstations
• Inform all employees of the means of prevention and warning symptoms (dehydration, heat stroke, sun exposure…)
• Check drinking water supplies, especially 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 : refreshed or fitted out premises (BTP), foggers, distributors of drinking and fresh water.
• Give instructions to employees and their supervisors to report any abnormal situation to the security manager.

What does the law say for outdoor workers?

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

► General measures:

• Make available to workers a suitable rest area climatic conditions or arrange the worksite in such a way as to allow the organization of breaks in equivalent safety conditions.
• Make workers available at least three liters of drinking and fresh water per day and per employee
• Ensure that the wearing of personal protection and protective equipment gear is compatible with high heat
• Take them adequate organizational measures so that the work is done without exposing the employees

► Measure in the event of red vigilance: level 4 of the Heat Wave Plan is activated when Météo France places the departments on red alert. This is a maximum mobilization which corresponds to a heat wave proven to be exceptional, very intense and long-lasting, with the appearance of collateral effects in various sectors (drought, supply of drinking water, saturation of hospitals or funeral directors, power outage, forest fires, need to adjust working hours or stop certain activities). This situation requires the implementation of exceptional measures. It is up to the employer, as part of its security obligationto carry out a daily reassessment of the risks incurred by each of the employees according to the temperature and its evolution during the day; of the nature of the work to be carried out, in particular in the open air or in thermal environments already presenting high temperatures, or involving a physical load; of theage and state of health of workers. In addition to the general measures previously mentioned:

• L’adjustment of the workload, schedules and more generally of the organization of work must be adjusted to guarantee the health and safety of workers throughout the red vigilance period;
• The list of employees benefiting from teleworking should be re-examined, paying particular attention to pregnant women, people suffering from chronic pathologies or with disabilities, etc.

If the assessment shows that the measures taken are insufficient, in particular for work carried out at a very high temperature and involving a significant physical load (insulation work on the roof or roofing, repeated handling of heavy loads, etc.), the employer must then decide to stop the work.

What are the rights of the worker if the obligations are not respected?

According to the Ministry of Labour, the employee who finds that no provision has been made, would consider that the measures implemented appear possibly insufficient with regard to the climatic conditions observed, would be refused by the employer when his requests for accommodation with regard to the provision of fresh water and sufficiently ventilated premises, would be entitled to seize the labor inspection services who will assess 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 option of calling on the staff representatives (CSE).

What does the Labor Code say?

Those are Articles R4121-1 to R4822-1 of the Labor Code which indicate the provisions applicable to workplaces in the event of extreme heat. The Labor Code recognizes that “extreme temperatures” (unspecified) constitute “occupational risk factors”. All laws and employer obligations are available online on the Legifrance website.

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