Could France’s health pass be extended to more French workers?
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Anti-vaxx poster
John van der Luit-Drummond, Editor

In a bid to beat a rising surge of covid-19 infections this past summer, France’s president, Emmanuel Macron, got tough on those hesitant of covid vaccines by introducing a hard-line, and controversial, vaccine mandate.

Before coronavirus swept the globe, a summer 2019 survey by Gallup found that one-third of French people believed vaccines are dangerous. Fast forward a year, and an Ipsos poll, published in November 2020, still found that 46% of French adults would turn down a coronavirus jab.

Getting tough on the vaccine sceptics, Macron’s introduction of the French health pass (pass sanitaire) in July meant only those who are double jabbed, recently tested, or recovered from the novel coronavirus can enter bars and restaurants or travel long-distance across France. Businesses that break these regulations risk temporary closure and a fine of up to €9,000. However, it was not just France’s social life that was affected by Macron’s new rules.

Around 2.7 million people across 70 professions, including private and public-sector doctors, hospital staff, ambulance and fire crews, and retirement and care home workers, must now prove they have had at least one dose of a covid vaccine or face suspension and possible dismissal.

Public-sector unions warned of a “health catastrophe” if large numbers of healthcare workers were suspended – warnings that France’s health minister, Olivier Veran, dismissed, arguing that those workers who missed the September deadline would likely only be temporarily suspended as most would “see that the vaccination mandate is a reality”.

Despite public protests, care-worker strikes, online petitions, and threats of legal action by mandate dissenters, Macron’s ultimatum went ahead. Some 3,000 workers across France were subsequently suspended without pay for failing to receive at least one dose of a covid-19 vaccine by the 15 September deadline.

Three-quarters of French people have now received at least one dose of a vaccine and Macron’s mandate is largely seen as a success. As the nation continues its post-pandemic recovery, Eva Kopelman, partner in charge of the employment law practice at Axipiter in Paris, is seeing three questions asked over and over again by French employers now pushing for their employees to be vaccinated.

Restricting access

In an attempt to replicate the French government’s mandate, many employers in France are wondering if they can push their workers to be vaccinated or, if not, restrict access to their premises to vaccinated employees only.

“Except for health workers, covid-19 vaccination in France is based on ‘voluntariness and medical secrecy’. Therefore, an employer cannot require but only encourage its employees to be vaccinated,” explains Kopelman.

“Also, the employer is not allowed to ask an employee to prove that he is vaccinated to come to work. Such restriction to access to premises could be challenged by the concerned employees based on the non-discrimination principle.”

Medical disclosures?

Whether a company can require its employees to disclose their vaccination status is another question frequently asked by French employers. “In principle, vaccination status is subject to medical secrecy, and the employer is not allowed to request information to the employees in this respect,” says Kopelman.

“From a French data protection law standpoint, collecting sensitive information is subject to legal authorisation or individual consent. As regards employees, it may be considered that the consent is [invalid] due to the subordination link existing between employers and employees,” she continues.

“Therefore, it is not advisable to ask employees about their vaccination status, except if the employer can demonstrate that the consent to provide information on the vaccination status has been freely given by the employees and there are no consequences in the case where the employee refuses to answer. Also, a requirement to be covid-vaccinated as a condition of hiring is not allowed.”

Liberté or dismissal?

Given the importance of liberté in the nation’s collective psyche it is perhaps unsurprising there is still resistance to mandatory vaccinations within certain sections of French society. This has led some employers to ask if they can sanction those employees who refuse to be vaccinated.

“There are no legal grounds to sanction – including dismissal – an employee who does not want to be vaccinated against covid-19. For instance, an employer cannot dismiss or remove the employee from their position based on their refusal to be vaccinated, and must maintain their salary. The employee could get the measure cancelled in court, or sanction and damages,” Kopelman warns.

In a bid to further increase vaccination rates, on 13 October, the French government announced it would be extending the health pass to most public spaces until 31 July 2022, while also announcing the end to free covid testing.

Although France’s workplace vaccine mandate currently only applies to those in the healthcare profession, an extension of the regulations cannot be ruled out.

“The health situation evolves very quickly, and one cannot exclude the possibility that the vaccine becomes mandatory for other workers in the next few weeks or months,” says Kopelman. “However, at this stage, this is not contemplated by the French government.”

Asked how employers could convince more employees to get vaccinated, Kopelman says: “Maybe one way would be to intensify the communication by explaining the aim of such a vaccination. Also, it might be necessary to be more educational in the way [the employer] explains the need for the most extensive vaccination possible.”