In France, employers cannot impose upon employees to be vaccinated against COVID-19.
This was confirmed by the Employment minister, Elisabeth Borne, at the beginning of December 2020. Only a law or a regulation could impose such an obligation. However, on 5 January 2021, Elisabeth Borne also stated that employers were expected to play a role in COVID-19 vaccine roll-out, as they sometimes do with the annual flu vaccination. She confirmed this vaccination would be voluntary and employees’ medical confidentiality would be preserved.
An employer has a duty to prevent health risks at work. Employers have to implement safety measures to prevent the spread of COVID-19 in the workplace and employees are obliged to strictly follow these measures (wearing masks, using hand sanitising gel, keeping their distances, teleworking as much as possible, etc.).
In addition, the French Labour Code (article R 4426-6) provides that the employer needs to measure the professional risks present at the workplace. This assessment allows the employer to identify the workers for whom some special protection measures may be necessary. On this basis the employer can recommend, if necessary and on the proposal of the on-site or offsite health at work doctor (depending on the size of the organisation), workers who are not immune to the biological pathogens to which they are or may be exposed, to carry out appropriate vaccinations, at the employer’s cost.
In some specific sectors, under some French health and safety legislation, certain vaccinations are mandatory for employees whose job implies specific risks (e.g. healthcare).
In the past (Supreme court decision, 11 July 2012), a funeral home employee has been considered as rightly dismissed for refusing to be vaccinated against Hepatitis B but there was a specific regulation imposing this vaccination and the health at work doctor prescribed it in that specific case. However, until now, there is no legal obligation to have a COVID-19 vaccination even in those sectors.
Furthermore, the French Labour Code (article R 4626-25) allows the health at work doctor to carry out or to have carried out, vaccinations that would be ‘imposed by an epidemic’. The occupational doctor is authorised to carry out vaccinations that are recommended in the event of a particular risk of infection.
Even with a formal prescription from the health at work doctor, dismissing an employee who refuses vaccination against COVID-19 could still be considered currently as unreasonable, which could give rise to damages, on top of the statutory termination compensation, or to be found discriminatory, for example if the refusal was based on religious grounds, which could give rise to damages (the amount being assessed by the judges).
Processing of data related to whether employees are vaccinated is normally prohibited under the protection of medical secrecy at the workplace.
Employers therefore cannot keep track of employees who are vaccinated and could not disclose the names of those who do not wish to be vaccinated. All the information related to vaccination must be collected and stored within the health at work doctor’s service.
Employment minister Elisabeth Borne has indicated that employees will not be required to inform their employer of their vaccination status, but will be invited to do so on a voluntary basis.