Will we be able to dismiss an employee who does not have the “health pass”? This measure provided for by the government’s draft health bill for employees in contact with customers and vulnerable people is unprecedented and legally uncertain, say lawyers specializing in labor law, interviewed by Agence France-Presse. The Council of State is due to issue an opinion on this measure shortly.
On July 13, Emmanuel Macron indeed announced that the health pass (complete vaccination, negative test) would become mandatory from July 21 to enter leisure places such as cinemas and theaters, but also, from the month of August, in cafes, restaurants and shopping centers, including for the staff working there.
At first, the Minister of Labor, Elisabeth Borne, had simply mentioned on RTL Thursday evening the possibility of “Procedure [disciplinaire] usual “, evoking “A warning, a layoff”, not to mention dismissal. But the text, as presented, provides that failing 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 carry out their activity. A layoff period of two months followed by dismissal will take place if the employee’s refusal to present this pass is maintained.
“If the Council of State validates this bill as it stands, it will have to withdraw”
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 Friday, after a meeting with the social partners, the ministry announced in a press release the introduction, in the bill, of a “More flexible incentive procedure” giving rise to “A preliminary interview between the employee and the employer with the aim of discussing the means to regularize the situation, but also to privilege the pedagogy before arriving at the suspension of the contract”.
“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, Covid negative or not. “This goes through the occupational doctor, 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 travel abroad and to large gatherings, it did not constitute a disproportionate obstacle to daily life, “Which would no longer be the case if it ends up depriving employees of their opportunity to work”, she emphasizes. “If it validates this bill as it stands, it 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 sufficient, it cannot be imposed as a work-related constraint two to three times a week for two hours or more [le temps de faire le test], it’s very complicated and it’s also very intrusive in terms of health ”.
Vaccines still under “conditional marketing authorization”
For Christophe Noel, lawyer at the Paris and Annecy bars, “There is something shocking about the law” because “The health pass refers to the question of compulsory vaccination”. It pushes employees who do not want to be vaccinated to accept it so as not to lose their job, “Unless you do a negative PCR test every two days, which is totally disproportionate”. He argues that while several vaccines (tetanus, hepatitis B, etc.) 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 two-month period would be based on a fault or if the bill intends to create a new cause for dismissal sui generis , enabling a dismissal procedure to be triggered almost automatically after sixty-one days [deux mois de suspension du contrat et un jour] “. “Where will the employee’s obligation end? “, he wonders, referring to medical confidentiality, which could be invoked by the Constitutional Council to reject the government’s plan.