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According to the law on the management of the health crisis dated 5 August 2021, the presentation of the health pass, already compulsory to allow public access to most closed places (museums, cinema, restaurant...) will be imposed from 30 August to the employees of these establishments receiving the public, failing which their employment contract may be suspended. The text also organises the vaccination obligation of health care personnel, with measures to suspend employment contracts without pay for personnel who refuse to present a health pass.
Obligation to present a health pass
With this law, employees of establishments receiving the public in closed places must hold a health pass (passe sanitaire) from 30 August: leisure activities; catering activities; trade fairs, seminars and exhibitions; health, social and medico-social services and establishments, except in emergencies; long-distance public transport activities within the national territory; department stores and shopping centres designated by the prefect of the department.
However, the obligation will only apply to minors over the age of 12, and therefore to certain trainees and apprentices, from 30 September 2021.
The health pass will also apply until 15 November to staff working in transport services that allow travel to or from the national territory. (plane, train, bus, etc.).
Consequences of the absence of a health pass for employees
Employees covered by the obligation to present a health pass will only be able to continue to carry out their activity by presenting to their employer, in paper or digital format, either the result of a negative virological screening test (PCR or antigenic), or proof of vaccination, or a certificate of recovery, or a certificate of medical contraindication in cases defined by decree.
If the health pass is not presented, the employee concerned may choose, with the employer's agreement, to take conventional rest days or paid leave.
If they do not take any days off or on their return, their employer will notify them on the same day and by any means of the suspension of their employment contract. This suspension, which will be accompanied by the interruption of payment of remuneration, will end as soon as the employee produces the required proofs.
On the other hand, if the supporting documents are not produced and the situation continues beyond a period equivalent to three days worked, the employee will be summoned to an interview in order to examine with him the means of regularising his situation. In particular, the employer may consider temporary assignment to a position that is not subject to the obligation to present a health pass. The prolongation of this situation will not be considered as a reason for dismissal, as was foreseen in the initial bill. And, following the decision of the Constitutional Council, the absence of a health pass will not justify the early termination of fixed-term and temporary employment contracts.
Criminal sanctions for employees and employers
Non-compliance with the obligation to present a health pass will be punishable by a fine of €135, which could be applied to employees as well as to members of the public present in the establishment or transport controlled by the police.
Employers required to check their employees' health pass will also be liable to penalties of up to one year's imprisonment and a €9,000 fine (€45,000 for a legal entity).
Vaccination obligation for health care workers
The law creates a vaccination obligation against COVID-19 for healthcare workers, inspired by the pre-existing vaccination obligations against several diseases (hepatitis B, diphtheria, tetanus, poliomyelitis). It therefore applies to all staff in the public and private sectors concerned, except in cases of medical contraindication.
In particular, the vaccination requirement will apply to people working in health and medico-social establishments and services and in various types of collective housing for the elderly or disabled, as well as to health personnel working outside these establishments and services, to professionals employed at home, to fire and rescue service (SDIS) personnel, to members of approved civil security associations, and to people working in health transport.
As of 15 September 2021, these people will have to be vaccinated to carry out their activities. From 15 September to 15 October 2021 inclusive, persons who can prove that they have received at least one of the required doses and therefore have an incomplete vaccination schedule will still be authorised to carry out their activities (provided that they present the result of a negative screening test for its validity).
After 15 October, in order to comply with the vaccination obligation, persons subject to the obligation will have to present proof of vaccination status justifying the administration of the required number of doses of vaccine, but may also present a valid certificate of recovery (currently this certificate must be at least 11 days old and no more than six months old) or a medical certificate establishing that they are not subject to the vaccination obligation because of contraindications.
Suspension of the contract and criminal sanctions
If the employer finds that an employee can no longer carry out his or her activity because of non-compliance with the vaccination requirement, he or she will immediately inform the employee that his or her employment contract is suspended, as well as his or her remuneration and the means of regularising his or her situation. An employee who is subject to a ban on working may, however, use contractual rest days or paid leave days before his or her employment contract is suspended.
The suspension of the employment contract will end as soon as the employee fulfils the conditions necessary for the exercise of his activity.
If the employee is on a fixed-term contract, the contract will end at the end of the period of suspension, even if this end occurs during the period of suspension.
The criminal penalties for employees carrying out their activity without complying with the vaccination obligation (€135 fine) and for employers who have not checked compliance with this obligation (€1,500 or €7,500, then €9,000 or €45,000 after three fines), will be the same as those for checking the health pass in transport services.
Authorisation of absence to be vaccinated
In order to facilitate the vaccination of the whole population, the law grants a leave of absence to employees and trainees who attend medical appointments related to vaccinations against COVID-19.
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