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.
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.
(unless there is a recognized medical objection), which includes personnel working in the following institutions:
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.
the bill provides 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:
Shopping centers and department stores, initially included in the list, were finally withdrawn but may be reinstated on a case-by-case basis, at the request of prefects, in view of “the seriousness of the risks of contamination”.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.
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, 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“. 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.
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.
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.
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.
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 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.
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.
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.
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 5th 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.
Co-authored with Levana Chemla.
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