Following the publication of law 2021-1040 of 5 August 2021, French employers are having to deal with refusal to get vaccinated by employees working in establishments where mandatory vaccination is now required.
Some employees have applied to the administrative courts or industrial tribunals (under public or private law) to challenge the suspension of their employment contract and their pay as a result of their refusal to be vaccinated against COVID-19.
Among the arguments put forward were:
These arguments merit further consideration, as illustrated by recent summary judgments.
In his application, one employee refusing compulsory vaccination argued that the suspension of the employment contract would deprive:
‘a person of resources with a view to forcing him to suffer physical harm that could potentially lead to death or serious injury’
and would constitute ‘manifestly inhumane treatment’. This was based on Article 4 of the European Convention on Human Rights (ECHR) which prohibits ‘torture and inhuman or degrading treatment or punishment’.
Under the ECHR and the Charter of Fundamental Rights, treatment is only considered degrading if it:
‘humiliates or degrades an individual, if it shows a lack of respect for his human dignity, or even diminishes it, or if it creates in the individual concerned a feeling of anguish or inferiority such as to break his moral or physical resistance’
(ECHR, 21 January 2011, MSS v. Belgium and Greece).
For example, fear at the mere prospect of being subjected to corporal punishment (whipping) in a state school has been held not to meet the required level of severity, because apprehension, anxiety, or mere psychological tension cannot fall into the same category as humiliation or degradation (ECHR, 25 February 1982, Campbell and Cosans, paragraph 30).
A ‘high threshold of severity is required for treatment to be considered inhuman or degrading’ (ECHR, 19 February 2009, A. and others v. the United Kingdom, paragraph 134).
The non-payment of salary resulting from the suspension of an employment contract (Article 14 of the law of 5 August 2021) is linked to an employee’s free choice to refuse vaccination and happens when there are no viable alternatives (such as paid leave, conventional leave, rest periods or even assignment to another position or teleworking).
In this context, it seems somewhat extreme to describe the suspension of the contract of an employee who freely refuses to comply with an obligation to undergo vaccination (which has been imposed in the general interest and which is comes with the best pharmacological guarantees), as ‘degrading treatment’.
The Court of Cassation had previously ruled on an employee’s refusal to be vaccinated, following the application of a legal obligation in his funeral home. It considered his dismissal was based on real and serious grounds (judgment of 11 July 2012)
More recently, and with regard to COVID-19 vaccination, interim relief judges in the Strasbourg administrative court, as well the Pau administrative court, ruled that the vaccination obligation did not cause serious and manifestly illegal harm to individuals’ physical integrity (interim order of the Strasbourg administrative court No. 2106447 of 27 September 2021, interim order of the Pau administrative court No. 2102411 of 16 September 2021).
A nurse’s aide in a public hospital had also argued that the suspension decision, which made the continuation of his employment contract conditional on the production of proof of his vaccination (or its impossibility for medical reasons), disregarded the ‘patient’s free and informed consent to the medical care’ to which he was entitled.
The interim relief judge (juge des référés) of the Strasbourg administrative court countered that he had not been required to undergo any medical treatment, and specifically, he had not been forced to be vaccinated against COVID-19 (Order no. 2106447 of 27 September 2021)
In his application for interim relief, another employee argued that a general principle of prohibition on discrimination was enshrined in Article 18 of the Treaty on the Functioniong of the European Union and in EU Regulation 2021/953 of 14 June 2021 on the EU’s digital COVID certificate.
However, Article 18 does not refer to discrimination based on health status, but only on nationality. In addition, the digital COVID certificate Regulation does not cover purely national situations, but only cross-border movements. Moreover, this regulation has a ‘purpose unrelated to the vaccination obligation’, as confirmed by the order of the administrative court of Pau of 16 September 2021.
In summary proceedings, the Pau administrative court judge specified that:
‘The vaccination obligation imposed on professionals in caring and non-caring roles in public health establishments does not create any discrimination between vaccinated and non-vaccinated workers which would be contrary to the principle of equality’.
One of the applicants argued that it was ‘manifestly unlawful to subject health workers to compulsory vaccination with products’ that were the subject of a conditional marketing authorisation.
According to the applicant:
‘The four authorised vaccines ChAdOx1 (Astra Zeneca), BNT162b2 mRNA (PfizerBioNTech), mRNA-1273 (Moderna) and Ad26.COV2.S (Johnson & Johnson) only have a conditional marketing authorisation issued by the European Commission.’
However, as the French National Agency for the Safety of Medicines and Health Products states on its website:
‘A conditional marketing authorisation allows the authorisation of medicinal products that meet an unmet medical need before long-term data on efficacy and safety are available. This is only possible if the benefits of the immediate availability of the medicine outweigh the risk inherent in the fact that not all the data are yet available. Conditional marketing authorisation brings together all the controls of a standard marketing authorisation to ensure a high level of safety for patients.’
The Pau administrative court interim relief judge stressed that:
‘The Covid-19 vaccines administered in France have been granted a conditional marketing authorisation by the European Medicines Agency, which carries out strict controls on the vaccines in order to ensure that they meet European standards of safety, efficacy and quality and are manufactured and controlled in approved and certified facilities. (…) They cannot therefore be regarded as experimental medicinal products within the meaning of the Public Health Code and Directive 2001/20/EC of the European Parliament and of the Council of 4 April 2001.’
Once a medicinal product is authorised and used within the framework of its marketing authorisation, it is marketed and is no longer an experimental medicinal product.
Other arguments may have been put forward, but to our knowledge, all the decisions rendered to date have rejected the applicants’ claims.
It should be recalled that in its decision of 8 April 2021 on compulsory vaccination for children, the European Court of Human Rights noted the existence of a:
‘General consensus on the vital importance of protecting the population against diseases which may have serious consequences for the health of the individual and, in the event of serious epidemic outbreaks, disrupt society.’
The French Constitutional Council has also upheld the conformity of 5 August 2021 law with fundamental rights and freedoms, noting the particular risk of the virus spreading in certain sectors of activity (decision n°2021-824 DC of 5 August 2021).
In conclusion and in the face of these arguments, beyond the application of the law on compulsory vaccination, an employer may also assert a general safety obligation. This obligation applies to employers but also to employees (Articles L 4121-1 and L 4122-1 of the Labour Code), for prevention of occupational risks and protection against the spread of COVID-19, particularly for highly vulnerable groups.
This article first appeared in, is reproduced with the kind permission of, Actuel RH. You can read the original article in French here.