The law establishing the French Health Pass and the vaccination obligation has been adopted on July 25th, 2021.
We are now waiting for the decision of the Constitutional Council that will be rendered on August 5th 2021, which is a necessary step before any entry into force of the law.
From a French labour law perspective, the bill notably provides for an obligation to employees working in establishments receiving the public to hold the Health Pass (proof of vaccination) or a negative result at the covid-19 test or a certificate of recovery as of August 30th, 2021:
Extension of the Health Pass in France
The law provides for the possibility for the French government, until November 15th, 2021, to condition the access to certain places, establishments, services or events on the presentation of a negative covid-19 test, proof of full vaccination, or a certificate of recovery from covid-19 contamination for:
- recreational activities
- commercial catering or drinking activities, with the exception of collective catering, take-away sales of prepared meals and professional catering and railways
- trade fairs, seminars and exhibitions
- except in emergencies, health, social and medico-social services and establishments, only for persons accompanying or visiting persons admitted to these services and for persons admitted for scheduled care
- long-distance travel by inter-regional public transport (except in the event of an emergency that prevents the required proof from being obtained)
- on the basis of a decision from the Prefect, above a certain size to be set by decree, when the characteristics and seriousness of the risks of contamination justify it, access to large shops and shopping centres, under conditions guaranteeing access for people to essential goods and services, as well as, where appropriate, to means of transport.
Consequences for employees in France
As from August 2021 30th, and subject to the decision of the Constitutional Council, the Health Pass will also apply to people working in the places, events and services concerned.
The bill provides that an employee who is unable to present his employer a valid Health Pass may no longer carry out the activity concerned.
In this case, the employee may, with the employer’s agreement, take rest days or paid leave. Failing this, the employer should immediately notify the employee by any mean of the suspension of his/her employment contract. This suspension entails the interruption of salary payments, which cease as soon as the employee produces the required proof.
If the above-mentioned situation lasts longer than three days, the employer must call the employee to an interview in order to examine with him/her the means of regularising his/her situation, and in particular the possibilities of assignment (if necessary, temporarily) within the company to another position not subject to this obligation.
As a consequence, an employee may remain suspended until he regularises his/her situation.
For employees on fixed-term contracts or temporary workers, the text provides for the possibility of early termination of the latter, without payment of damages.
Failure to comply with the obligation to present a Health Pass exposes the offender to a fine of up to €750.
In the event of three or more offences within a period of 30 days, the offence may be punishable by 6 months’ imprisonment and a fine of €3,750, as well as an additional penalty of community service.
When a professional operator does not control the possession of the Health Pass for persons wishing to access it, it is given formal notice from the administrative authority to comply with its obligations. This formal notice indicates the failures observed and sets a deadline for compliance which may not exceed 24 working hours.
If the formal notice is unsuccessful, the administrative authority may order the administrative closure of the place, establishment or event concerned for a maximum period of seven days. The administrative closure measure shall be lifted if the operator provides proof that arrangements have been put in place to enable it to comply with the said obligations. If a breach is observed on more than three occasions during a period of forty-five days, it is punishable by one year’s imprisonment and a fine of €9,000 (€45,000 for a legal person).
Leave of absence to be vaccinated
Employees and trainees shall be granted leave of absence to be vaccinated against covid-19. This leave of absence may also be granted to an employee or trainee accompanying a minor or protected adult.
Such absences shall not entail any reduction in remuneration and shall be treated as a period of actual work for the purpose of determining the duration of paid leave and legal or contractual rights linked to seniority.
Next steps to be followed once the decision of the French Constitutional Council will be rendered.