The text currently concerns employees in "leisure, catering or drinking activities, trade fairs or exhibitions, services and establishments welcoming vulnerable people, except in emergencies, and large establishments and shopping centers. ".
It stipulates that if they fail to present their employer with a negative screening test for Covid-19, proof of vaccination or a certificate of recovery, contained in the "health pass", they will no longer be able to exercise their activity. In this case, it provides for a two-month layoff period followed by dismissal.
Confidential medical information
For Deborah David, lawyer at the Paris bar, "the dismissal for lack of health pass would be difficult to justify for the employer except to create a new specific reason for dismissal".
On RTL Thursday evening, the Minister of Labor, Elisabeth Borne, simply mentioned the possibility of a "usual (disciplinary) procedure", evoking "a warning, a layoff", not to mention dismissal.
"In practice, the health pass applied to employees is complicated to implement because medical confidentiality prohibits the employer from verifying himself the state of health of his employee", whether he is vaccinated or not, negative to Covid or not. "This goes through the occupational physician who alone can decree an aptitude or inaptitude", explains Me David.
If the Council of State validated the health pass at the beginning of June, it justified its decision by the fact that, limited to trips abroad and to large gatherings, it did not constitute a disproportionate obstacle to daily life, "this which would no longer be the case if it ends up depriving employees of their opportunity to work, ”she underlines. "If he validates this bill as it stands, he will have to withdraw."
In addition, she adds, "we create a reason for dismissal, by nature final, which is not supposed to last over time since the health emergency law goes, to date, until December 31, 2021 ".
And "if a negative PCR test is enough, it cannot be imposed as a work-related constraint two to three times a week for two hours or more (the time to take the test, editor's note), it's very complicated and it is also very intrusive in terms of health ".
For Christophe Noël, lawyer at the bars of Paris and Annecy, "there is something shocking at the level of the law" because "the health pass refers to the question of compulsory vaccination". He urges employees who do not want to be vaccinated to accept it so as not to lose their job, "unless they do a negative PCR test every two days, which is totally disproportionate".
Free and informed consent
He argues that if several vaccines (tetanus, hepatitis B ...) are mandatory for some health professionals, "the anti-covid vaccines are still in phase 3 of clinical studies and as such experimental".
"They only benefit from a conditional marketing authorization", which prevents them from being imposed on anyone, he said, referring to "article L1121-1 of the public health code providing that no substance in the research phase can be imposed on a person without their free and informed consent ".
For Alexandre Ebtedaei, at the Paris bar, "the real question is whether the dismissal of the employee who does not justify his vaccination status at the end of the 2-month period would be based on a fault or if the bill intends to create a new cause of dismissal sui generis, allowing to trigger in a quasi-automatic way a dismissal procedure after 61 days (two months of suspension of the contract + 1 day; note) ".
“Where will the employee's obligation end?” He wonders, referring to medical confidentiality, which could be invoked by the Constitutional Council to challenge the government's plan.