Vaccinal pass in business: what does the law say?

Since January 24, 2022, a vaccination pass is now provided for access to activities for which a health pass was previously requested. The vaccination pass is therefore compulsory for employees and people who work in these places, such as cafes, restaurants, or long-distance transport.

Be careful though, the vaccination pass is not a vaccination obligation as such because this pass is limited in time. We must therefore not confuse the vaccination pass and the vaccination obligation, which still exists for certain health professionals in particular.

Is an employee authorized to be absent to be vaccinated?

The law of August 5, 2021 still provides in its article 17 that employees benefit from a leave of absence to go to appointments related to vaccinations against Covid-19.

The Ministry of Labor clarified, in its question-and-answer, that the employer can ask the employee to justify his absence by presenting him with the confirmation of vaccination appointments upstream or the proof of the realization of the injection a posteriori.

The latter also added that no maximum duration for this authorization of absence was fixed but that the duration of the absence should however be reasonable in view of the travel time necessary for the employee.

These absences do not entail any reduction in remuneration. They are assimilated to a period of effective work for the determination of the duration of paid leave as well as for the legal or contractual rights acquired by the persons concerned by virtue of their seniority, and cannot therefore give rise to recovery.

In addition, a leave of absence may also be granted to the employee who accompanies the minor or the protected adult for whom he is responsible for appointments related to vaccinations against Covid-19.

Is it possible to dismiss an employee who refuses to present his vaccination pass?

Jurisprudence has already accepted the dismissal of an employee who had been hired as a funeral director and who had refused to be vaccinated against hepatitis B when vaccination was compulsory. If we transpose the case law to the case of an employee who does not present his vaccination pass, one might think that it is possible to dismiss the employee for real and serious cause.

However, the vaccination pass is not a measure that is intended to last over time and the law has provided for a specific procedure for suspending the employment contract to be put in place as a priority.

Consequently, if an employer decides to dismiss an employee even before having put in place the suspension of the employment contract or if he decides to dismiss the employee after a short period of suspension of the contract, the employee could surely have the dismissal without real and serious cause in the event of litigation.

Another possibility of dismissal could be considered if the period of suspension of the employee's employment contract were to last over time. Indeed, case law accepts dismissal for prolonged or repeated absences that disrupt the proper functioning of the company. In this case, the employer must prove both the disruption of the business and the need for permanent replacement of the employee.

This procedure is also not without risk. If the employer dismisses the employee too soon for prolonged absences disrupting the operation of the company, the judges could consider that the dismissal was without real and serious cause.

Dismissal in one or other of the cases envisaged remains risky for the employer. Since it is linked to the employee's health, a judge could even consider the dismissal void.

Can an employee whose employment contract is suspended for failure to present the vaccination pass return to work if he presents a certificate of reinstatement?

The result of a positive RT-PCR or antigen test attesting to recovery from Covid-19, dating back at least 11 days and less than 6 months is a document that is worth a vaccination pass.

The procedure for suspending the employment contract of an employee who does not present a vaccination pass is intended to apply until the employee presents the employer with proof that is equivalent to a vaccination pass.

Thus, an employee whose employment contract was suspended because he does not have a complete vaccination schedule but who catches Covid-19 and who can present a recovery certificate to his employer can return to work for the period of validity of this certificate.

At the end of its period of validity, the employer will again have to approach the employee to find out if he has another proof that is worth a vaccination pass. If this is not the case, the employer will again have to implement the procedure for suspending the employment contract.

Please note, a decree to be published will reduce the validity period of the reinstatement certificate to 4 months on February 15, 2022 (instead of 6 months at present).

Is it possible to break a CDD or a mission contract in the absence of presentation of the vaccination pass?

Like the CDI, the CDD or the mission contract of a temporary employee can be suspended in the absence of presentation of the vaccination pass. On the other hand, the employer cannot break it for the sole reason of non-presentation of the vaccination pass.

At the end of the fixed-term contract or the temporary work contract, the end-of-contract or end-of-mission indemnity remains due to the employee, excluding the period of suspension.

On what date does the mechanism for presenting a vaccination pass for employees end?

The presentation of a compulsory vaccination pass for access to certain places defined in article 1 of the law applies to employees from January 24, 2022.

Previously, the "health vigilance" law of November 10, 2021 had amended law no. 2021-689 of May 31, 2021 relating to the management of the exit from the health crisis. Indeed, article 2, 1°, modified article 1, II, A of the law of May 31, 2021 to provide that the government could implement the health pass until July 31, 2022 instead of July 15, 2021. November 31 initially. Thus, the obligation to present a health pass for access to certain places has been extended until July 2022, XNUMX.

The vaccination pass having replaced the health pass from January 24, 2022, the duration of the obligation to present the vaccination pass currently runs until July 31, 2022.