A boss ensures that he only recruits unvaccinated people: is this legal?

Does medical confidentiality also apply in the context of recruitment? In recent days, the message of a business leader has widely reacted on social networks, the latter assuring that he no longer intended to integrate vaccinated people into his teams. “I favor the hiring of unvaccinated people from 2022”, he said. “I was foolish enough to believe in government nonsense at the start of the pandemic, now I know and I’m looking for smart people for my business.”, justified the boss, at the head of a company specializing in wealth management.

Taken back very widely by activists hostile to the government’s health policy, however, these comments are problematic. In the eyes of the law, it is in fact prohibited to request the vaccination status of an employee or a potential candidate, like any other element relating to his medical file. To refuse a job on the grounds that a person would be vaccinated would also constitute a form of discrimination.

Lawyer specializing in labor law and member of the Ayache business cabinet, Caroline André-Hesse explains that this entrepreneur cannot freely decide to limit his recruitments to non-vaccinated people. “He has no way of doing it”, she slips to LCI, “this could characterize a situation of discrimination”. Vaccination status in fact constitutes medical information, which by nature must remain confidential. “In the current state of the law, it is forbidden for an employee to ask an employee if he is vaccinated or not, same thing for a potential candidate”, slips the specialist.

In the same way, it would be completely prohibited to claim that a future recruit is of such or such blood type, or that it is not diabetic for example. A business manager basing his recruitments on such criteria could thus be prosecuted. “We could have referrals from the Defenders of Rights for example”, notes Caroline André-Hesse, “from employees who would be excluded from a recruitment process.” In such situations, “the discrimination would be relatively easy to prove”, believes the lawyer, adding that the injured parties could “claim damages, for the damages suffered”.

If this business leader would go against the law by excluding vaccinated people from a recruitment process, would the reverse be possible? On paper, claiming an employee to be up to date with his vaccines is not authorized either. However, Caroline André-Hesse notes that in the current context, the exercise of certain professions is conditioned to the presentation of a health pass. This is the case, for example, for working in a cinema, in a zoo or even in cruise ships with accommodation. As a result, asking a potential candidate to present a pass is in this case legitimate for an employer, even if this pass is not yet synonymous with a vaccine since it is accessible with a negative test.

In the coming weeks, the lawyer “wouldn’t be surprised” that the law evolves, since the government wishes to transform the health pass into a vaccination pass. Consequently, the texts will have to be adapted in order to give employers in the sectors concerned the prerogatives to ensure that their employees will be properly vaccinated. A transformation of the current health pass which will not however make the exclusive recruitment of employees who are without exception unvaccinated more legal.

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