ER Editor: Precisely (this article’s final point), the point is to PUT PRESSURE on employers, who can in any case do nothing LEGALLY against their employees for NOT taking the vaccine. As this article clearly points out, employers should do nothing against their employees for refusing. And for doing nothing, there is no sanction.
Why employers have no interest in enforcing the health pass law
Explanations that can be used by employers and employees alike. It’s up to each of us to make the most of it so as not to submit to an illegitimate law!
Is it in the interest of employers to enforce the health pass law? A president of a labour tribunal explains why this law is a trap for employers, who have nothing to lose by not applying the law, and even everything to gain. An essential contribution, which will bring a lot of clarification from us in the days to come.
As the Constitutional Council has validated a large part of the new law on the health pass, the question now arises as to what it changes for employers.
For all employers, the text does not change anything to what exists today.
First of all, while the government had announced sanctions for employers who would refuse to suspend, or even fire, their employees who would not have a health pass or mandatory vaccination, depending on the case, in fact this law does not create any sanctions for these cases.
So if an employer in the restaurant business suspends an employee for not having a health pass, or if an employer in the medical field suspends an employee for not having a vaccination, he will not be able to hide behind a constraint: there is none in this law.
And this is normal, and it was foreseeable: the private law employment contract has the force of law, and if a third party interferes in the relationship to block it by coercion, then it must assume all the consequences for the other two parties. This is the reason why the state paid the salaries of all the employees they had prevented from working during the lockdown. This was not out of kindness, it was just because it was a legal obligation.
The subtlety of article 16
One small subtlety, however, for medical and paramedic employers is in Section 16:
“The disregard, by the employer, of the obligation to monitor compliance with the vaccination obligation” is punishable by a penalty, in this case a 5th class contravention, i.e. 1,500 euros maximum.
This is the only penalty provided for employers, and a quick reading would suggest that it applies to those who do not penalize their employees. This is not the text.
The obligation that is made to these employers is to monitor the respect of the vaccination obligation. This is not at all the same thing as sanctioning an employee for not respecting the vaccination obligation.
The second trap of the law
And this leads to the second trap.
An employer cannot ask an employee about his health, let alone punish him for that reason. This is explicitly forbidden by article L1132-1 of the Labor Code
In short: “no employee may be punished, dismissed or subjected to a direct or indirect discriminatory measure… because of his state of health”.
The suspension of the employment contract being a sanction, if it is pronounced “because of his state of health”, it is null and void. That is to say, if the employer suspends the employment contract for any health reason, the application of this article will be sufficient to nullify the sanction. And since this is discrimination, it is one of the only cases, along with harassment, where there is no scale or ceiling in the event of breach of contract. The sentences can therefore be very heavy.
The third trap of the law for employers
Finally, the third trap: the suspension of the employment contract, which is in fact a disciplinary sanction that deprives the employee of his or her salary, is subject to a specific procedure, which is described in articles L 1332-1 et seq. of the Labor Code.
In particular, the employee must be summoned to the meeting within a certain period of time, be allowed to be assisted by a member of the company, and a period of time must be respected before the sanction is pronounced. Failure to respect this procedure may invalidate the sanction.
To summarize the pitfalls, an employer who wishes to suspend the employment contract of his employee must:
-respect the formalities and procedures specific to disciplinary sanctions
-not question the employee about his health
-not punish the employee on health grounds.
If the employer does not respect these elements, the risk of sanction before a Labour Court is maximal, and in the case of discrimination, unlimited.
What to do?
So, how can the employer comply with the new law?
For all those who do not fall under article 12 (restaurants, bars, cultural or leisure places…), the best thing to do is: NOTHING
There is no penalty if the employer does nothing, but he risks a lot by sanctioning his employee.
For individual employers under article 12, who are excluded from sanctions, the best thing to do is: NOTHING
For the other employers of article 12 (health professions and similar), they have the obligation, under penalty of fine, to monitor the respect of the vaccination obligation. As they cannot ask their employees about their vaccination status, which is a matter of medical secrecy, they must follow the normal procedure in the event of a question about a health issue: they must organize an examination visit by the Occupational Physician independently of the periodic examinations, as provided for in article R4624-17 of the French Labor Code.
The Occupational Physician will not communicate any information to the employer on the state of vaccination, but only on the employee’s aptitude or not to work at his post. And the employer will have fulfilled his obligation to control the respect of the vaccination obligation without violating any law.
Finally, far from the thundering announcement of July 12, 2021, this Law has been emptied of its substance as far as Labor Law is concerned, which has not been called into question. It produces very few, if any, binding obligations for employers. It is clearly aimed at putting psychological pressure on employers. Woe betide those who give in to this pressure and thus put their heads on the chopping block themselves.