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What France’s new pro-vaccination law means for employers
17/08/2021
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Covid Paris
Authors
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Mathilde Houet-Weil
Mathilde Houet-Weil is a partner and leader of Weil & Associés’ labour and employment practice

With France facing a variant-fuelled fourth wave of infections this summer, President Macron recently declared: “With the delta variant, the epidemic is picking up again. My message is simple: to get vaccinated.”

After heated parliamentary debates, the country passed a controversial law in less than a week making vaccination mandatory for essential workers and requires employees in certain establishments open to the public to provide a health pass to their employer.

Perceived by some as an unacceptable infringement on individual freedom and a violation of the right to medical secrecy, these new measures triggered ongoing, weekly protests in major French cities, led by anti-vaccination, far-right politicians, and yellow vests.

Following the guidance provided by the National Protocol for the Health and Safety of Workers, employers not directly covered by these new obligations, together with their employees’ representatives, must come up with a tailor-made, in-company health protocol designed to ensure the safe return of employees to the workplace.

Mandatory vaccinations

The new law compels essential workers, such as healthcare workers – doctors, nurses, pharmacists, midwives, caterers in hospitals, etc. – and workers that come into contact with vulnerable people, including firefighters, policemen, or workers in retirement homes, to be fully vaccinated by 15 September or face the risk of a suspension without pay.

Workforce health pass

A health pass – paper or digital proof of either a full vaccination, recent negative test, or recent covid-19 recovery – is already mandatory in France to attend large events, enter cultural venues, such as cinemas, museums, and theatres, access restaurants and bars (even outside), and venues accommodating more than 50 people; a measure that prompted a surge in the vaccination rate immediately after being announced.

In addition, and as of 30 August, employees of these establishments must provide a health pass. Employers must ensure this new requirement is complied with or face the risk of closure for seven days, a fine of €9,000, and potentially one-year imprisonment.

If an employee fails to provide a health pass in one of the above-listed establishments, the employer has the option to assign them to a position that keeps the worker away from the public, ask them to take a paid holiday (deducted from the yearly five-week paid leave applicable in France), or suspend their employment without pay until they provide a health pass.

In the initial draft bill, it was possible to terminate an employee with a specific procedure for failure to provide the health pass when requested, but these provisions were scrapped following public backlash. Employers will have to rely on the general rules governing the termination of employment, bearing in mind “just cause” is always required under French employment law. This means an employee without a health pass could be terminated for objective disturbance to the business, but it is difficult to foresee how judges will react.

These regulations provide a strong incentive for vaccination, since showing a fresh covid test every three days will prove complicated, not to mention expensive as covid tests will no longer be free of charge from mid-October – whether this cost will be borne by the employer or the employee remains unclear.

This new set of rules will be applicable in principle until 15 November, depending on the virus situation. If need be, parliament will have to vote again to extend these regulations.

In-company health protocols

Companies that do not fall within the scope of the mandatory vaccination or the health pass cannot request employees to be vaccinated or show a health pass. This would constitute an infringement on the employee’s privacy, which is strongly protected in France.

These companies are invited to follow the recommendations provided by the updated National Protocol for the Health and Safety of Workers, and, in cooperation with their employees’ representatives and taking into account the particularities of their business, work out their own health protocol that should include:

  • campaigning for vaccination with information meetings and posters;
  • encouraging vaccination by allowing absences during working hours;
  • defining good hygiene practices on-site, including masks, social distancing of at least one meter, ventilation of premises and offices, hand-sanitiser, etc.;
  • taking care of symptomatic employees, including isolation and calling of an ambulance in case of severe symptoms; and
  • setting out more flexible teleworking rules – while teleworking is no longer the rule, it is still recommended for activities that allow it.

The National Protocol constitutes non-binding recommendations that leave it to social dialogue within each company to determine which precise rules are best designed, in their particular case, to achieve the best possible balance between the protection of employees’ health and the legitimate business needs.

However, a failure to abide by these soft law provisions would certainly expose the employer to a violation of their duty of care if an employee can demonstrate that they suffered damages that could have been avoided had the guidelines been strictly followed.

While the new regulations and the increasing return to the premises leave many questions unanswered in this ever-evolving crisis, one thing, on a lighter note, seems certain: the very French habit of “la bise” should disappear from the workplace, since exchanging a kiss on the cheek to greet your co-workers in the morning appears too risky in this time of pandemic.