Can a restaurateur be penalized for not having checked the vaccination status of his employees?

Open despite the epidemic, cafes and restaurants remain subject to health protocols. To ensure that they are respected, the police and gendarmes can then carry out checks in the establishments and issue fines. This is what happened to a restaurateur in the Tarn, who was surprised to receive a fine of 1000 euros for not having checked the vaccination status of his employees. A measure which, according to him, would however only concern caregivers.

To share his astonishment, Romain Jammes broadcast on Wednesday January 12, on his Twitter account, this fine received a few days earlier. On the document, we can see that this ticket was issued on December 16 at 10:59 a.m., against the “legal representative” from “Sound bench”, the name of the establishment. And that her motive is“lack of control by the employer of compliance with the vaccination obligation imposed for the purpose of combating the spread of the Covid-19 epidemic. Provided for by Art. 16 PII, art. 12 PI, law 2021-1040 of 05 -08-2021”.

Contacted, the manager first confirms the authenticity of the document. “I checked the codes of law mentioned in the fine, I did not understand”, he confesses, explaining that he contested the sanction and wrote to the Tarn prefecture. Absent on December 16 but having been informed, Romain Jammes says that the gendarmes then proceeded to check the health passes of customers and employees. And that everyone was in order, despite a doubt for a moment about the duration of the negative test of an employee.

According to him, other establishments are affected by this situation: “Following my tweet, two cafes, in Brittany and in the Jura, called me to tell me that they had had exactly the same fines. We are starting to think that it is not a blunder.”

But then, what does the law say about catering professionals? Do they have an obligation to be vaccinated against Covid to exercise? As mentioned in the fine, the vaccination obligation is governed by the law of August 5, 2021. It is indeed article 12 of this text which designates all the professionals in charge of “be vaccinated, unless there is a recognized medical contraindication, against covid-19”.

All the different health professionals are listed there, but no mention is made of the catering trades. Article 16, also referred to in the fine, provides for the amount of the fine in the event of “misunderstanding, by the employer, of the obligation to check compliance with the vaccination obligation mentioned in I of article 12 of this law”.

On its site, the Ministry of Labor tells us more about the professions concerned by the vaccination obligation. Caregivers are not the only ones to be subject to the measure. The ministry points out that this applies to “care workers” and to “administrative and technical staff” establishments covered by the law of 5 August, but also to “employees of service providers working on a recurring and planned basis (secretarial, cleaning, laundry, waste management, etc.) within these establishments”, to “temporary staff intended to be made available in establishments where vaccination would be compulsory”. Here again, the restoration is not mentioned.

In reality, restaurateurs are only covered by the obligation of a valid health pass, mentioned in article 1 of the law of August 5. This is confirmed by the Union des métiers et des industries de l’hôtellerie (Umih): the sanitary step is indeed the only valid measure to date for these employees, since the end of September and exception of cooks who are not in contact with the public.

Is the fine received by Romain Jammes then the result of an error? Requested on this point, the Ministry of the Interior confirms that it is indeed a fine taken on the basis of article 16 of the law mentioned above. And in no case “of a ticket related to the subject of the vaccination pass currently under debate in Parliament”. Then adds, for all answer, that if the verbalization is considered abusive, “this person always has the possibility of filing a dispute with the officer of the public prosecutor’s office of the police court of Albi”.

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