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The new French health pass and mandatory vaccination: what do employers need to know?

Written by
Capstan Avocats, the law firm setting the benchmark for labour law in France.
Authors
Jean-Benoît Cottin
Associate - France
Capstan Avocats
France
29.07.21
4
The French government is finalising new rules extending the use of its ‘health pass’ to access a range of venues, activities and for travel and introducing mandatory vaccination in healthcare settings.

The French Parliament has just adopted a new law designed to enable the public authorities to combat the COVID-19 epidemic more effectively. The law covers two main measures:

  • the extension of the health pass (‘passe sanitaire’);
  • compulsory vaccination for certain categories of people working in the health sector.
Extension of the health pass

Since the law of 31 May 2021 took effect, France has introduced a ‘health pass’ obligation, which consists of making access to certain places conditional on the presentation of proof of the person’s state of health (vaccination certificate, result of a virological screening test with a negative result for COVID-19, or certificate of recovery from COVID-19).

The new text greatly extends the possibilities for using the health pass. While currently the pass can only be required for access to certain places, establishments or events involving large gatherings of people for leisure activities or trade fairs, it would be extended to:

  • Leisure activities.
  • Commercial catering or drinking activities, except for institutional catering, take-away food service and professional road and rail catering.
  • Trade fairs, seminars and exhibitions.
  • Health, social and medico-social services and establishments, except in emergencies. The requirement is only for those accompanying or visiting individuals accommodated in these services and establishments and for those who are accommodated there for scheduled care. A person who is in possession of one of the documents listed above may not be subject to any other access restrictions related to the COVID-19 epidemic in order to visit a person in care and may only be refused access to these services and establishments based on rules governing the operation and safety of the establishment or service, including health safety.
  • Long-distance travel by interregional public transport within France, Corsica or one of the overseas territories, except in the event of an emergency that prevents the required proof from being obtained.
  • In large shops and shopping centres (above a threshold defined by decree), only by reasoned decision of the Prefect, and only when circumstances and the seriousness of the risks of infection justify it. This requirement will be subject to conditions guaranteeing people’s access to essential goods and services as well as, if necessary, to means of transport.

 

From 30 August, any employee who is required to justify his or her health status in order to carry out professional duties, even if s/he does not carry out a directly regulated activity directly (such as an employee required to travel using long-distance public transport; or an employee required to visit clients whose activity is regulated) will have to present a health pass.

If the employee does not present the evidence required (certificates or test results), his or her employment contract will be immediately suspended without pay, unless s/he decides, in agreement with the employer, to use contractual rest days or paid holidays. The suspension is notified by the employer and ends as soon as the employee produces a health pass.

When this situation continues beyond the equivalent of three days worked, the employer must invite the employee to an interview to examine with him or her ways of resolving the situation, in particular the scope for an assignment, if necessary temporary, within the company to another position that is not subject to this obligation.

However, fixed-term employment contracts may be terminated before their term.

These health pass provisions will expire on 15 November 2021.

Obligation to vaccinate

The new vaccination requirement will apply to:

  • anyone working in certain establishments (health establishments, medical centres, establishments for the elderly or disabled, etc.)
  • all health professionals (doctors, dental surgeons, midwives, pharmacists, nurses, masseur-physiotherapists, etc.) if they are not already covered by the obligation above, as well as to individuals working in the same premises as these professionals.

 

A person covered by the vaccination obligation can demonstrate s/he is compliant with:

  • a certificate of vaccination status;
  • a certificate of recovery from COVID-19;
  • a medical certificate declaring a contraindication to vaccination.

 

Provisionally, a negative COVID-19 virological test is also accepted until 14 September. Proof of administration of at least one dose of vaccine plus a negative COVID-19 virological test will be accepted from 15 September to 15 October 2021.

Failure by the employer to comply with the obligation to monitor compliance with the vaccination requirement is punishable by a fine of EUR 1500. If such a violation is reported more than three times within a period of 30 days, it is punishable by one year’s imprisonment and a fine of EUR 9,000.

Consulting the Social and Economic Committee

In companies with at least 50 employees, the employer must inform the Social and Economic Committee (CSE), without delay and by any means, of the monitoring measures it intends to implement resulting from its obligations relating to:

  • the health pass;
  • checks required for employees subject to compulsory vaccination.

 

The CSE’s opinion may be given after the employer has implemented these measures, at the latest within a period of one month from the date on which the employer communicates information on these measures to the CSE.

Next steps

The law is currently being examined by the Constitutional Council, which will give its decision on 5 August.