Navigating pandemic rules in the autumn

Published on : 30/09/2021 30 September Sep 09 2021

Fall marks the “rentrée” in France: back to school and for many, back to the office! 

This year, employers and workers can be confused about the multitude of rules resulting from the sanitary crisis.  
This can be especially challenging for companies present in multiple jurisdictions with differing health and safety rules. 
Below are some answers to questions that are on everybody’s mind. Careful though, as the rules continue to shift as the health situation evolves. 

Q: Is remote work still mandatory? 

A: Though it remains recommended as a general way of avoiding crowding in workspaces, there is no longer a government-imposed “minimum number of days” of remote work. 
Of course, many businesses are shifting towards a hybrid model of work (remote/on-site) in order to satisfy requests from employees who enjoyed working from home part of the time. 

Q: Do my employees have to have the Health Pass?

A: The health pass is made up of either proof of vaccination status, or the result of a negative Covid test performed less than 72 hours ago, or a certificate of recovery following a Covid infection. 

The presentation of the health pass is made compulsory until November 15, 2021 to access certain places or participate in certain events as well as for travel by means of transport services. 

Employees working in places or events requiring the health pass, as well as in transport services where it is required, must prove that they themselves hold a health pass.

The places and events requiring the presentation of the health pass, and therefore its possession by the employees, are
- recreational activities ;
- restaurants, cafés and takeaways, as well as professional road and rail catering;
- fairs, seminars and trade shows;
- health, social and medical services and establishments, except in case of emergency;
- interregional long-distance public transport;
- shopping centers, by decision of the local prefect, when their characteristics and the seriousness of the risks of contamination justify it.

Q: Can I fire my employee for not having the Health Pass?

A: When an employee does not have a health pass, he or she may, in agreement with the employer, use days of conventional rest or paid leave to avoid having to travel to the workplace. This solution can only be temporary in nature and will not allow the employees concerned to keep their pay until 15 November 2021. The requirement of the employer's agreement will probably raise the question of whether the employer's refusal must be justified, which may, as a precaution, be advised.

If the employee fails to use rest or leave days, his employment contract is suspended. The employer shall notify the employee of this suspension by any means, "on the same day". This last requirement should probably be understood to mean that, in the event of late notification, the employee is entitled to be paid for the days not worked prior to the notification. The effect of the suspension is to interrupt the payment of the remuneration. Logically, the suspension ends as soon as the employee produces the required documents.

The recent law does not provide for the possibility of dismissal.

Only the suspension of the employment contract is foreseen, mostly because the health pass obligation is temporary in nature which would prevent any permanent measure against reluctant employees. 

Q: Do my employees have to get vaccinated? Do I have to give my employees time off to get vaccinated?

A: The law of August 5 imposes a vaccination obligation on certain professionals. This obligation applies from September 15, 2021, as employees could previously present a negative test. The text also provides for a period of tolerance until October 15, 2021 for people who have received one of the two doses of vaccine, subject to the presentation of a negative test.

The law establishes for the benefit of these employees, as well as trainees, a leave of absence to attend medical appointments related to vaccinations. A leave of absence may also be granted to employees or trainees who accompany a minor or a protected adult in their care to vaccination appointments. 

These absences do not entail any reduction in remuneration and are treated as a period of actual work for the purpose of determining the duration of paid leave and for the legal or contractual rights acquired by the persons concerned in respect of their seniority.

Q: What if those who are obligated to be vaccinated refuse?

The penalty for non-compliance with the vaccination requirement is that the employee is prohibited from working. The employer who finds that an employee can no longer work because of non-compliance with the vaccination requirement must inform the employee without delay of the consequences of this situation and of the means to regularize it. The suspension ends as soon as the employee fulfills the conditions necessary to exercise his activity.

In the meantime, or in the absence of regularization, the employee who is subject to a ban on working may use, with the employer's agreement, days of rest under the agreement or days of paid leave. Otherwise, the employment contract is suspended, depriving the employee of his remuneration. 

Still here, the recent law remains silent on the dismissal issue which is much debated.

One might argue that an employee who ignores the vaccination obligation after a prolonged absence could expose himself to a risk of dismissal because of the disruption that his absence causes to the company.

To date, the consequences on the employment contract of non-compliance with the vaccination obligation are therefore similar to those resulting from the non-holding of a health pass when required, with two differences. 

Firstly, it is specified that the suspension cannot be assimilated to a period of actual work for the determination of the duration of the paid vacations as well as for the legal or conventional rights acquired by the employee by virtue of his seniority, which is not provided for in case of suspension of the contract for lack of a health pass. 

Secondly, it is indicated that, during the suspension, the employee retains the benefit of the complementary social protection guarantees to which he or she has subscribed, this rule being of public order. Here again, the law does not expressly provide for an equivalent rule for employees subject to the obligation to have a health pass whose contract may be suspended.

Flichy Grangé Avocats can assist you with the employment consequences of the health crisis and vaccination efforts.


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