What rules will apply for employees and their employers under the health pass? If the text is validated by the Constitutional Council on Thursday, questions persist.
Who will be affected?
According to the law adopted on July 25, workers in establishments open to the public will be subject from August 30 to the presentation of the health pass.
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Workers (employees or managers) in cafes, restaurants, fairs, department stores, public transport, etc. will therefore be affected by the health pass.
Who will be able to control?
According to the law, it is the employer who will be responsible for ensuring compliance with the obligation. For this, he does not have to have detailed health information of an employee: the presentation of a health pass does not say anything about the vaccination status or not of a person, nor does it give information. detailed medical: it simply displays the status “valid” or “invalid”, according to one of the three criteria provided.
As a reminder, in addition to a complete vaccination schedule, the health pass is also valid with proof of a previous Covid infection (more than 11 days and less than six months) or a negative PCR or antigen test of less than 48 hours.
In what capacity does the employer intervene?
According to the labor code, the employer has an obligation in terms of employee health and safety. It is in this capacity that he will have to control the health pass, for his employees as a whole, but also for the company’s customers and suppliers, for example.
It is therefore the employer who will be in charge of controlling the health pass. However, details are still lacking as to the modalities of these controls. Implementing decrees should specify the modalities for monitoring this measure, which should enter into force within less than a month.
In particular, it is not known whether he will have to control the health pass accompanied by an identity document. Otherwise, it would be possible to present someone else’s pass without the employer realizing it.
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If the employer does not provide for the health pass checks, he risks a formal notice, an administrative closure of seven days, or even a year in prison with a fine of 1,500 euros, up to 9,000 euros if the offense is repeated.
What sanctions for employees?
At first, an employee who would not be “ready” at the end of August will be able to ask for days off or RTT.
The employer may suspend the employee’s employment contract for up to two months – without remuneration – until the employee becomes compliant.
Beyond three days of suspension, the employer must receive his employee in order to find a solution: find a position that does not require a health pass, teleworking, etc.
The “framed” dismissal for a time provided for by law was ruled out by the senators. It is therefore common law that will apply if an employer wishes to separate from an employee.
Legal vacuum on dismissal
The cases of dismissal for failure to present the health pass should remain marginal: it will indeed be difficult for an employer to find a valid reason for doing so.
Indeed, the non-vaccination cannot constitute a “fault” of an employee. However, an employer could dismiss for “characterized objective disorder”, reason for serious cause of dismissal. This is the case, for example, when an employer dismisses a driver who no longer has his driving license. In this case, the employee would be dismissed with legal severance payments and the right to unemployment benefits.
The most likely remains that these cases do not end in contractual breaches – which avoids the risk of industrial tribunals if the two parties actually agree.
The vagueness of short contracts
There remains a major pitfall: the sectors affected by the health pass make massive use of short contracts – particularly in catering, distribution, etc.
However, by definition, a CDD has an end date. In principle, breaking it prematurely only involves serious serious misconduct. Or an agreement, again, between the employer and the employee.
The Constitutional Council will have to settle the question in particular, at the risk of confirming a breach of equality between employees on CDI and those on CDD.
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