In line with the evolution of the health situation and with an increased number of cases linked to the Delta variant, President Emmanuel Macron announced this July 12, 2021, new measures to strongly encourage the population to be vaccinated.

A draft law on mandatory vaccination for caregivers and the generalization of the health pass was adopted by the Council of Ministers on July 19, 2021, and finally ratified by Parliament on Sunday, July 25, 2021.

This text authorizes the Prime Minister to restrict access to some public areas to holders of a health pass, and notably obliges certain categories of employees to present such a pass to their employer, under penalty of suspension of their employment contract.

When will this law come into effect?

This text can only be promulgated after examination by the Constitutional Council, which is ongoing. The Constitutional Council has indicated that it will provide a decision on August 5, 2021 ).

The new measures provided for in the bill should therefore come into force shortly after that date. The same applies to certain points that must be specified by decree.

Obligations under the bill

Vaccination is mandatory for health professionals [1]

(unless there is a recognized medical objection), which includes personnel working in the following institutions:

• Prevention and occupational health services, whether inter-company or not
• Social and medico-social service establishments
• Health establishments, army hospitals
• Health centers, retirement homes
• Mobile care centers and teams
• Tuberculosis centers
• Information and screening centers
• Residence-services for elderly or disabled people.

This vaccination requirement also applies to other professions such as psychologists, psychotherapists, osteopaths, firemen, firemen of the fire and rescue services, pilots and flying personnel of the civil security ensuring the care of victims, service providers and distributors of medical equipment, persons exercising the activity of medical transport, domestic help

These employees will have to present a certificate of vaccination as of September 15, 2021 to be allowed to continue their activity.

If they fail to do so, their employer may suspend their employment contract, under the conditions detailed below applicable to employees subject to the obligation to present a health pass. If the employee has been unable to work for more than 30 days, the employer or the regional health agency must inform, if necessary, the national council of the order to which the employee belongs.

Obligation for employees working in establishments open to the public to hold a health^[2] pass:

the bill provides[3] that employees working in establishments open to the public will have to present, as of August 30, 2021, a health pass to the employer in order to be able to go to their workplace.

This concerns employees working in contact with the public in the following sectors of activity:

• Leisure activity
• Commercial catering or drinking establishment (except collective or professional catering and take-away sales)
• Fairs, seminars and trade shows
• Health services, hospitals, retirement homes, medico-social establishments,
• Long-distance travel: travel by air, rail, and bus for long-distance trips.

Shopping centers and department stores, initially included in the list, were finally withdrawn but may be reinstated on a case-by-case basis, at the request of prefects, in view of “the seriousness of the risks of contamination”. A decree will specify these provisions.

The Council of State considers that requiring these employees to hold a health pass “does not disproportionately affect the freedom to exercise their professional activity^[4].

Employer’s supervision of the health pass presented by the employee:

in principle, the employer cannot process or verify the employee’s medical data, which are sensitive data concerning the employee’s medical secrecy and private life.

The government said in a statement^[5], that the authority controlling the health pass, will, via the application “TousAntiCovid Verif“, scan the QR code presented by the employee, and that only the information “valid / invalid pass” and “name, first name“, “date of birth” will be displayed, “without disclosing more health information.” “This processing (is) compliant with national and European rules on the protection of personal data and subject to the control of the CNIL“.

The bill also states that: “The documents shall be presented in such a way as to enable authorized persons or services to know the data that is strictly necessary for the exercise of this control[6]“. However, on a practical level, employees will still have to present a document in paper or digital format that could allow the employer to know the origin of the validity of the health pass. This point should therefore be subject to a specific control by the Constitutional Council.

Failure to present the health pass or vaccination certificate:

• Subject to the employer’s agreement: the employee will be able to take paid or conventional leave to comply with the law
• If the employer does not agree: the employer may, on the same day, notify the employee of the suspension of his or her employment contract and the interruption of payment of his or her salary[7]. This suspension will end as soon as the employee presents a valid health pass. If the documents are not produced and the situation continues for a period of 3 days, the employer must invite the employee to an interview in order to examine the means of regularizing the situation, “in particular the possibility of assignment, temporarily if necessary, within the Company to another position not subject to this obligation.

However, the adopted version of the bill no longer provides that the employer may terminate the employee for failure to submit a health pass within the 2-month period.

Failure to present the health pass or the vaccination certificate for fixed-term or interim employees:

the employer may terminate the contract before the end of the term, provided that he can prove a real and serious reason, without the employee being liable for damages, notwithstanding the termination indemnity provided for in the French Labor Code, reduced by the period of suspension. The same applies to assignment contracts of temporary employees that are terminated at the initiative of the temporary employment agency.  In the case of a protected employee, the employer must first obtain the agreement of the labor inspectorate.

Isolation of individuals testing positive for covid-19:

until November 15, 2021, individuals who test positive for covid-19 will be required to be placed in isolation for 10 days (non-renewable period) from the date of the test, “in the accommodation they determine,” unless the prefect chooses another location. This isolation will cease before the 10 days if the person presents a negative test.

Unless the situation is an emergency, this isolation means that the person can only leave the premises between 10am and 12pm. The person placed in isolation may be inspected by CPAM agents during the day and outside this time period. The violation of the measure of placement in isolation is punished by a fine of €1,500.

Consultation of the Social and Economic Committee

In companies and establishments with more than 50 employees required to implement measures to control the health pass or the vaccination obligation, the employer must inform the CSE [8]without delay of the methods used to control the health pass or the vaccination obligation.

However, the opinion of the CSE may be given after these measures have been implemented and “at the latest within one month of the communication by the employer of the information” on these measures.

Leave of absence

Employees, trainees and public servants may be absent from work to attend medical appointments related to vaccinations against covid-19 or to accompany a minor or protected adult to these appointments. These absences must not trigger a reduction in remuneration and will be considered as actual working time for the purpose of determining the duration of paid leave and for the legal or contractual rights acquired by the employee in respect of his or her seniority in the Company.

Sanctions for non-compliance with the health pass and/or vaccination requirements

Failure of the employer to comply with the health pass requirements:

the operator of an establishment or the person in charge of an event who does not ensure that the public is in possession of the health pass may be given formal notice by the administration to comply with its obligations within a period not exceeding 24 working hours. Failing this, the administration may order the administrative closure of the place, the establishment or the event for a maximum period of 7 days. This closure is lifted as soon as the operator or the professional responsible for the event provides proof of compliance. In case of failure to comply on 3 occasions during a period of 45 days, the operator or professional responsible for the event is liable to a penalty of one year’s imprisonment and a fine of €9,000.

Failure to comply with the vaccination certificate requirements:

in places where the vaccination certificate is required, the employer neglecting to check if his staff is provided with a vaccination certificate is punished by a 5^th category fine (€1,500) and in case of recidivism, by a fine of €9,000 and a prison sentence of one year when the failure is noted 3 times over 30 days.

Summary of the expected schedule and deadlines for the announced measures

Proposed action timeline:

• Since July 21, 2021: the health pass is required for access to cultural and recreational venues gathering more than 50 people.
• From the beginning of August 2021 (from the day after the law is enacted): the health pass will be extended to new places and activities:
• Cafés, bars and restaurants (except for take-away sales), including on the terrace,
• Fairs, trade shows and seminars
• Interregional public transport, i.e. domestic flights, long-distance buses and some trains (the government says that TGV and Intercity trains will be affected)
• Hospitals, elderly people’s homes, retirement homes, social and medical institutions for patients undergoing scheduled medical treatment, as well as visitors and accompanying persons, except for the emergency service
• Large shopping centers only by decision of the prefect according to the local situation and taking into account the need to guarantee “access of people to essential goods and services“. A size threshold should be set by decree. The executive has so far proposed to limit it to centers of more than 20,000 m².

Employees must present a health pass or vaccination certificate:

• From August 30, 2021: all employees working in companies and establishments where a health pass is required for users, will have to present their employer with a health pass in order to be able to carry out their activity. Regarding the wearing of the mask[9], “the wearing of the mask remains the rule in companies. As the pass is compulsory for employees as of August 30, there are no plans at this time to remove it for these employees^[10].
• As of September 15, 2021: personnel subject to mandatory vaccination (caregivers, firefighters, etc.) will have to present a vaccination certificate in order to be able to work. Those who have received only one dose of vaccine will nevertheless be able to continue to work until October 15, 2021.

Ending of the application of the law:

• This transitional regime of gradual exit from the state of emergency has been brought forward to November 15, 2021 inclusive, a date that should theoretically mark the end of the obligation of the health pass and of the vaccination obligation. These obligations may nevertheless be renewed and this date postponed by a new law voted by the Parliament, if necessary.

Marie Nguyen The Dung

Lawyer, De Gaulle Fleurance & Associés

Co-authored with Levana Chemla.

[1] Sections 5 and 7 of the bill

[2] A health pass is a paper or digital document granted to individuals with: A complete vaccination schedule (i.e., 7 days after the second dose of vaccine, as opposed to the current 14 days), a negative Covid PCR test less than 48 hours old, or a certificate of recovery from Covid-19 infection performed within 6 months of contracting the virus

[3] Article ¹ of the bill

[4]  Opinion of the Council of State rendered on July 19, 2021 on the draft law on the health crisis

[5] Press release published on the government website and updated on July 21, 2021: https://www.gouvernement.fr/info-coronavirus/pass-sanitaire

[6] Article 1 al.18 of the bill

[8] Article 7bis of the bill

[9] Decree no. 2021-955 of July 19, 2021 amending decree no. 2021-699 of June ^1, 2021 prescribing the general measures necessary for the management of the health crisis

[10] Communiqué from the Ministry of Labor to AFP, recalled by Olivier Véran in an interview for RTL on Tuesday, July 20, 2021