Social law issue. Many businesses, and in particular cafes and other restaurants are eagerly awaiting their reopening just before a promising summer. We understand that they want to prevent one employee from infecting others from the first week or exercising their right of withdrawal by invoking the worrying cough of a colleague. If barrier gestures remain mandatory, such contamination cannot be ruled out. The question then arises of requiring a certificate upon hiring, knowing that vaccination is possible for any adult voluntary since May 12. The solution is questionable in law and its outcome uncertain.
It is only after two weeks that a first vaccination drastically reduces the serious risks, and contagiousness. And the maximum effect occurring only after two vaccinations separated by one or two months, the season will be over. It is therefore largely upstream that we must think about it.
Admittedly, article L. 3111-1 of The public health code has long imposed compulsory vaccines (BCG for example). And if tomorrow a French law requires adults to have a health passport, general or sector, each employer should then ensure the application of these rules of public order. But, in the meantime, this is not the case.
Moreover, any employee can refuse to be vaccinated, indicates the “Questions and answers” of the Ministry of Labor posted on April 26: “He can always refuse, and this refusal must not have any consequences. “
Common sense and respect
And this from the recruitment stage. Indeed, in application of article L. 1132-1 of the labor code: ” No person can be excluded from a recruitment procedure, no employee can be sanctioned, dismissed, or be the subject of a discriminatory measure, direct or indirect. (…), due to his state of health “. Discrimination heavily sanctioned by the penal code of three years’ imprisonment and a fine of 45,000 euros.
Why ? Because in the absence of legal imperative, our health choices belong to us. Then, in terms of information technology and freedoms, our very personal health data is among the most sensitive. In the company, they are entrusted to the occupational health services, subject to medical confidentiality: in particular with regard to the employer, even if the occupational physician performs vaccinations on site.
But what if we left the egotistical problematic of our society of individuals? Because “Man is not an island” and an employee is not Robinson: he lives in a working community. “It is the responsibility of every worker to take care (…) his health and safety, as well as that of other people affected by his acts or omissions at work ”, states Article L. 4122-1: reminder of common sense and minimum respect for colleagues and customers. But this article starting with ” in accordance with the instructions given to him by the employer ”, the latter, bound by his heavy security obligation, remains primarily responsible. And ultimately very helpless in the face of the contagious Covid-19, in the absence of compulsory vaccination, general or sector.
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