Health pass in business, what does the law say?

1) How to manage the situation of an employee who refuses to be vaccinated or to present his health pass?

Employees affected by the vaccination obligation or the possession of the health pass who are not able to present such proof will no longer be able to exercise their professional activity. The procedure that must be put in place by the employer varies depending on whether the employee is concerned by the health pass or by the vaccination obligation.

Indeed, the text provides that the employer of an employee subject to the presentation of a health pass must notify him, by any means, the same day, of the suspension of his employment contract and that when this suspension is extended to - beyond 3 working days, the employer will summon the employee to examine the means of regularizing his situation, in particular the possibilities of assignment, if need be temporary, within the company to a position not subject to this obligation.

As a first step, even if the law does not impose any particular formalism, the employer must be able to demonstrate that he has properly organized this interview (examples: summons of the employee by registered letter with acknowledgment of receipt, report of the interview signed by the parties…). Regarding the holding of the interview itself, the QR of the Ministry of Labor specifies that it is still recommended to organize the face-to-face interview, in a place not subject to the obligation to present the health pass. . However, if this is not possible, this interview can also be organized by videoconference.

Secondly, faced with the absence of an employee's health pass, the employer must loyally seek solutions to avoid the suspension of the employment contract. The employer will be able to consider the implementation of a reclassification as recommended by the law or even a job adjustment, in particular by the setting up of teleworking as recommended by the QR of the Ministry of Labor.

It is therefore possible to consider that any possibility which would not present an excessive constraint for the company (in terms of cost, reorganization…) must be offered to the employee. Especially since it can be a partial solution. Indeed, the QR specifies that "the suspension of the employment contract of the employee refusing to produce his supporting documents is only valid for the places for which his supporting documents are required, in proportion to the working time that the employee should have performed in these places. ".

The suspension period constitutes a real prejudice for the employee (loss of remuneration, non-acquisition of paid vacation, etc.), so that if the employee succeeds in demonstrating that there were solutions which were not offered to him, he could probably bring a legal action for compensation for the damage suffered (reminder of wages, damages, etc.).

With regard to the employee subject to the vaccination obligation, the text does not provide for a specific interview with the employee after a given time or search for a temporary solution; it only provides that the employer informs him without delay of the consequences of this prohibition to exercise a job (that is to say the suspension of his employment contract) as well as of the means to regularize his situation. However, there is nothing to prevent the employer from organizing an interview with the employee in this case too. In its QR, the Ministry of Labor also recommends it in order to establish a dialogue with the employee.

In both cases, employees can, in agreement with their employer, take paid vacation days or conventional rest days. In the absence of a solution, the contract remains suspended without maintenance of remuneration until the production of supporting documents.

This suspension is not assimilated to a period of actual work for the acquisition of paid leave as well as for contractual legal rights linked to seniority. This rule is of public order; it is therefore impossible to derogate from it.

It should be noted that this lack of assimilation to actual work with regard to paid leave and seniority is specified only for employees subject to compulsory vaccination. However, in the absence of express assimilation in the law for employees subject to the health pass, the suspension of the contract is not assimilated to actual work with regard to paid leave and seniority.

sources:

• Law n ° 2021-1040 of August 5, 2021, art. 1, II, C, 1.; art. 14, II.
• Minist. Job. QR “Obligation of vaccination or to have a health pass for certain professions”

2) Is it possible to ask an employee to be vaccinated or to present his health pass?

As soon as the employees are concerned by the vaccination obligation or the possession of the health pass, two situations must be distinguished:

Employees who work in the sectors of activity or places referred to in article 1 of the law for which there is an obligation to present the health pass;

Employees who work in places or sectors of activity referred to in article 12 of the law for which there is an obligation to be vaccinated.

In both situations, the employer cannot force the employee to be vaccinated. The choice to be vaccinated is up to the employee himself. However, for the employees referred to in Article 12, this is a condition for exercising their professional activity. The employer must ensure that this obligation is respected. Thereby :

• for the employees referred to in article 1, from August 30, the employer will be able to ask the employee to present his health pass in order to be able to exercise his professional activity;
• for the employees referred to in article 12, from August 9, 2021, they must be vaccinated, unless there is a medical contraindication. However, the application of the vaccination obligation applies in several stages:
  • From August 9 to September 14, 2021 inclusive, the personnel concerned will be able to present: either a certificate of vaccination status; either the result of a positive RT-PCR or antigen test attesting to recovery from Covid-19, dating at least 11 days and less than 6 months; or the negative result of a virological test less than 72 hours old (RT-PCR screening examination, antigen test or self-test carried out under the supervision of a healthcare professional).
  • From September 15 to October 15 inclusive, a transitional period is provided for by law. When the employee has provided proof of a first dose of vaccine, he may continue to exercise his activity provided he presents the negative result of a virological test.
  • From October 16, the people concerned will have to justify, to their employer, having a complete vaccination schedule or not being subjected to it due to a medical contraindication or a recovery after contamination by COVID-19.

sources:

• Law n ° 2021-1040 of August 5, 2021, art. 1, II, A, 2 °; art. 12, I.; art. 13, I; art 14, I, A and B.
• Minist. Job. QR “Obligation of vaccination or to have a health pass for certain professions”

3) How to manage the absence of an employee's health pass as part of a one-off seminar?

Decree No. 2021-1059 provides for the presentation of a health pass for professional seminars of more than 50 people when they take place in a site outside the company. Note that only seminars outside the company and over 50 people are affected by the obligation to present a health pass. Employers therefore have two levers of action to avoid this constraint: organize a seminar with less than 50 people or organize it on the company's site.

For companies that organize a seminar for more than 50 people on a site outside the company, the employee, like any person who does not present a mandatory health pass in the exercise of his professional activity, will be subject to the provisions provided for. by the law of August 5, 2021 during the duration of the seminar (suspension of the employment contract, taking days off… see our previous question "How to manage the situation of an employee who refuses to be vaccinated or to present his health pass ? ”)

In practice, if the employee can continue his professional activity during the seminar, he will be refused access to the seminar but will continue to work.

sources:

• Decree n ° 2021-1059 of August 7, 2021, art 1, 8 °.

4) Is it possible to break a fixed-term contract or an assignment contract in the absence of vaccination or presentation of the health pass?

Like the CDI, the CDD or the assignment contract of a temporary employee may be suspended if the necessary supporting documents are not presented. The law had provided for a new case of early termination of the CDD or the assignment contract. These contracts could be terminated unilaterally and early by the employer, subject to respecting the dismissal procedure.

However, the Constitutional Council, in its decision of August 5, censored this provision of the bill. Indeed, the latter decides that by providing that the failure to present a "health pass" constitutes a cause of early termination of only fixed-term or mission contracts, the legislator has instituted a difference in treatment between employees according to the nature of their employment contracts which is unrelated to the objective pursued.

Thus, it remains possible for the employer to suspend the fixed-term contract or the temporary employment contract, but he can no longer break it for the sole reason of not presenting the health pass or non-fulfillment of the obligation. vaccination by the employee.

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

sources:

• Law n ° 2021-1040 of August 5, 2021, art 1, II, C, 1 °; art. 14, II.

5) Does the presentation of the sanitary pass concern all employees in the restaurant business, including those at the head office or establishments dedicated to take-away sales?

The new measures target commercial catering activities, with the exception of collective catering, take-away sales of prepared meals and professional road and rail catering.

Thus, are not affected by these measures:

• employees working in head offices who do not themselves carry out a catering activity;
• collective catering employees as well as professionals who go there for lunch;
• employees of take-out catering establishments for prepared meals;
• employees making deliveries only;
• employees of professional road and rail catering.

sources:

• Law n ° 2021-1040 of August 5, 2021, art. 1, II, A, 2 °, b).
• To go further, please offer downloading his white paper containing the 20 most asked questions about the health pass in France