The legal weekly for the start of the 2021 school year - The health pass in the Antibes - Grasses basin companies! What a headache!

The health pass: a headache for employers: between the obligation of prevention and the prohibition of dismissal, what to do?

 

 

 

 

 

When will employees be required to show a health pass?

 As already indicated in previous legal weeklies, employees will be obliged to present a health pass to go to the places mentioned in the Law of 6 August 2021 as from 30 August 2021. For trainees and apprentices, this date is extended to 30 September 2021. For carers and people working with vulnerable people, they will have to be vaccinated by 15 September 2021.

Can the employer impose vaccination against COVID-19 as part of his obligation of prevention and safety towards his employees?

 The implementation of this obligation cannot be applied to this type of vaccination until it is made compulsory by the Labour Code, as is the case for the tetanus vaccine.

 This would be a breach of the Labour Code. but also an attack on the integrity of the human body and the right to work. the right to freely dispose of one's body, as set out in the French Civil Code.

 The Government has attempted to strike a balanced balance between the constitutional objective of health protection and the rights and freedoms of employees likely to be affected by emergency health measures.

 The possibility of dismissal in the absence of vaccination was ruled out by the Health Crisis Management Act.

 For employees on permanent contracts, the dismissal of employees who do not have a vaccination passport has been made impossible.

 These employees would be subject to a suspension of their employment contract with an indefinite interruption of salary.

 Will employers then be able to invoke other grounds for dismissal that will be considered real and serious?

 With regard to employees on fixed-term contracts, the Constitutional Council censured the law's amendment providing for the possibility of early termination of a fixed-term contract for failure to submit a health pass. The Council based its decision on a breach of equality between employees on permanent and fixed-term contracts: 

 " 78. Accordingly, by providing that failure to present a "health pass" constitutes grounds for terminating only fixed-term or assignment contracts, the legislator has instituted a difference in treatment between employees depending on the type of contract. nature of their employment contract which is unrelated to the objective pursued (Recital 78 of Constitutional Council Decision no. 2021-824 DC of 5 August 2021).

 

It is therefore the renewal of the fixed-term contract that will pose difficulties.  

 

Furthermore, the conclusion of a permanent contract following a fixed-term contract will not be possible if the employee does not have a health pass.

 Other grounds for dismissal which the employer may use without the dismissal being characterised as unfair:

 

• the employer may invoke the reason for dismissal linked to repeated absences disrupting the operation and organisation of the company, while checking that the company's dysfunctions are real and concrete.

 

• dismissal for unfitness for work does not appear to be a very safe solution for the employer. In fact, unfitness for work is defined as a lack of the physical or mental abilities and/or qualities required to perform one's duties. Assessed according to the workstation The absence of a vaccination passport does not call into question the employee's physical and mental fitness for the job. However, the absence of a vaccination passport does not call into question the employee's physical and mental fitness to carry out his duties.

 It remains to be seen how the occupational medicine and labour courts will react to this question, which seems to be arising. 

 

Finally, it is questionable whether the issue of health pass is related to the issue of discrimination on the basis of health status.  

 

While Article L.1132-1 of the French Labour Code states that "no person may be [...] dismissed or subjected to a discriminatory measureby reason of [...] his morals, [...] by reason of his state of health", the vaccination passport is not directly linked to the employee's state of health. 

 

It is not a question of creating inequality of treatment between employees who have a health pass and those who do not, for reasons related to their health. It is a question of establishing this distinction in treatment based on the protection of public health and the very high risk of the virus spreading on the national territory. Thus, as in the case of unfitness, it is not directly a question of the employee's state of health, so that the provisions of the Labour Code prohibiting all forms of discrimination could not, in the end, apply to this new situation.

 

What remains to be seen is how the labour courts will rule on disputes arising from the Law of 6 August 2021. 

 

Cécile ZAKINE will accompany you from the beginning of the school year on these issues and will assist you in court in the event of a dispute