Law n ° 2021-1040 of August 5th, 2021 relating to the management of the health crisis, which provides in particular for the presentation of the health pass by the employees of certain establishments open to the public, and by caregivers, as of August 30, was validated by the Council. Constitutional on August 5, 2021, and was subsequently enacted on August 6, 2021.
This law of August 5th, 2021 marks a decisive turning point in the management of the health crisis.
Indeed, in order to avoid new waves of contamination due to Covid-19, and more particularly in view of "the increasing circulation of the Delta variant combined with the specificities of the summer period", the government wished to "reconcile sustainably the continuation of the various activities with a control of the circulation of the virus on the national territory, and to take into account the effort of the Nation in favor of vaccination ”.
This wish is reflected in various measures in favor of a mass vaccination campaign targeting many categories of employees for a lasting exit from the health crisis, which should be addressed point by point.
1) Extension of the management regime for exiting the health crisis
First, article 1 of the law of August 5th, 2021 amends article 1 of law n ° 2021-689 of May 31, 2021 relating to the management of the exit from the health crisis.
In this way, the regime for managing the exit from the health crisis, that is to say the exit from the state of health emergency, a new legal regime having been created by law n ° 2020-290 of 23 March 2020, is extended until November 15, 2021, when it was due to end on September 30, 2021.
As part of this extension, article 1 of the law of May 31, 2021 is amended so that the Prime Minister can, from June 2, 2021 until November 15, 2021 and no longer until September 30, 2021 inclusive , "By decree taken on the report of the minister responsible for health, in the interest of public health and for the sole purpose of combating the spread of the epidemic of covid-19: To impose on people wishing to travel to their destination or coming from the French territory, Corsica or one of the communities mentioned in article 72-3 of the Constitution, as well as to the personnel involved in the transport services concerned, to present the result of an examination of virological screening not concluding to contamination by covid-19, proof of vaccination status concerning covid-19 or a certificate of recovery following contamination by covid-19 ”.
It should be noted that the justification of a negative PCR test, of a vaccination status concerning covid-19 or of a certificate of recovery following contamination by covid-19 has been extended to the personnel involved. in transport services to or from France. Indeed, the previous legislation only required it for people benefiting from these transport services. However, the presentation of proof of non-contamination with Covid-19 does not only concern these people mentioned above, but has on the contrary been extended to the entire population provided that it wants to go to establishments whose access requires it.
2) Extension of the legal framework of the health pass
The compulsory presentation of a health pass, or a PCR test (which will very soon be chargeable) will be extended to new activities from the beginning of August, whereas it has already been applicable since July 21 to “all places of leisure and culture gathering more than 50 people (performance hall, amusement parks, concert halls, festivals, sports halls, cinemas…) ”.
These new activities are specified by the law of 5 August 2021 relating to the management of the health crisis:
- Hobbies ;
- Commercial catering or drinking establishments, with the exception of collective catering, the take-away sale of prepared meals and professional road and rail catering;
- Trade fairs, seminars and trade shows;
- Health, social and medico-social services and establishments, except in emergencies, for people accompanying or visiting people accommodated in these services and establishments as well as for those accommodated there for scheduled care;
- Long-distance travel by interregional public transport;
- Department stores and shopping centers, beyond a certain threshold defined by decree and by reasoned decision of the prefect (moderation imposed by amendment No. 1 validated by Parliament).
It should be noted that the decree n ° 2021-1059 of August 7, 2021 redefined the concept of health pass, as being the justification for the absence of contamination by covid-19 by not only, the presentation of a vaccination schedule complete, but also by the presentation of an RT-6PCR screening examination or an antigen test of no more than 72 hours or a self-test carried out under the supervision of a healthcare professional.
3) Obligation to present the health pass for certain employees
The law of August 5th, 2021 relating to the management of the health crisis specifies in particular that the obligation to present a health pass is not imposed only for people going temporarily to the places mentioned above, but also for people intervening there, from August 30, 2021, and only when "the seriousness of the risks of contamination in connection with the exercise of the activities which are practiced there justifies it, in particular with regard to the density of population observed or envisaged".
In this regard, it is expected that when an employee does not present the supporting documents, certificates or results attesting to an absence of contamination with Covid-19, and if he does not choose to use, with the agreement of his employer, conventional days of rest or days of paid vacation while waiting for these documents to be obtained, then his employment contract may be suspended.
It should be noted that the suspension of an employment contract necessarily entails the interruption of the payment of remuneration.
However, when the employee still does not present proof of non-contamination with Covid-19 beyond three working days, the employer is obliged to invite the employee to an interview "in order to examine with him the means of regularizing his situation, in particular the possibilities of assignment, within the company to another post not subject to this obligation ”.
If the employee does not present a health pass beyond three working days, this does not constitute a reason for dismissal, unlike the initial bill.
Likewise, contrary to the initial bill and in accordance with the decision of the Constitutional Council, temporary employment contracts, i.e. fixed-term contracts and mission contracts cannot be terminated before the end of the term, at the employer's initiative, if the employee does not present a health pass, according to the same procedure provided for dismissals for personal reasons.
Indeed, in order to censor this provision, the Constitutional Council first noted that "employees on open-ended contracts and those on fixed-term contracts or assignments are in different situations".
If the legislator intended to limit the spread of the Covid-19 epidemic by the obligation to present a health pass by employees and public officials, it nevertheless emerged that "employees, whether they are under indefinite contract or on fixed-term contract or assignment, are all exposed to the same risk of contamination or transmission of the virus ”.
Consequently, "by providing that the failure to present a" health pass "constitutes a cause of termination of only fixed-term or mission contracts, the legislator has instituted a difference in treatment between employees depending on the nature of their contract. of work which is unrelated to the objective pursued ”.
Thus, the provision providing for the termination of fixed-term contracts or mission contracts for lack of a health pass was deemed contrary to the Constitution.
In addition, the suspension of the employment contract ends when the employee presents his employer with a health pass or a PCR test.
4) Obligation to present the health pass for public officials
The law of August 5th 2021 relating to the management of the health crisis provides specific provisions for public officials who work in the establishments mentioned above.
Despite their special status, which differs from private sector employees, public officials will be subject to the same obligation to present the health pass.
Indeed, if they do not present the supporting documents, certificates or results of non-vaccination with Covid-19, and if they do not choose to use, with the agreement of their employer, days of leave, the latter will notify by any means, the same day, the suspension of their duties or their employment contract.
As for employees in the private sector, when the days of leave taken while awaiting the regularization of the employee's situation with regard to the health pass extend beyond three working days, “the employer summons the staff member for an interview in order to examine with him the means of regularizing his situation, in particular the possibilities of assignment, if necessary temporary, to another post not subject to this obligation ”.
5) Sanction in the event of disregard of the obligations relating to the health pass
The law of August 5th, 2021 relating to the management of the health crisis, provides for sanctions for employees and employers in order to guarantee the effectiveness of the implementation of the health pass.
More particularly, it is provided that "the failure to understand the obligations relating to the presentation of the health pass in the places mentioned, is sanctioned under the same conditions as those provided for in Article L. 3136-1 of the Public Health Code repressing the fact, for any person, to go to an establishment open to the public in disregard of a measure enacted on the basis of 5 ° of I of article L. 3131-15 of the same code ”.
In other words, if employees in the private or public sector do not present a health pass in the establishments receiving the public mentioned above, they risk a fourth class fine of € 135.
Likewise, the fact that a transport service operator does not control the possession of a health pass by passengers is punishable by a fifth class fine, as provided for in article 2 of the decree. n ° 2021-1056 which expressly provides that "By derogation from articles R. 49 and R. 49-7 of the Code of Criminal Procedure, for the fifth class contravention mentioned in II of article 16 of the law of 5 August 2021 abovementioned repressing the failure by the employer to monitor compliance with the vaccination obligation mentioned in I of this same article, the amount of the fixed fine is set at 1,000 euros and that of the flat-rate increased fine is set at 1,300 euros ”.
The operator of a place or establishment or the professional responsible for an event does not control the possession, by the people who wish to access it, of a health pass, is liable to a formal notice by the administrative authority, to comply with the obligations applicable to access to the place, establishment or event concerned.
This formal notice is set for a period which cannot exceed 24 working hours.
In the event that it is unsuccessful, the law of August 5, 2021 provides that "the administrative authority may order the administrative closure of the place, establishment or event concerned for a maximum period of seven days".
In addition, if the same breach mentioned is noted more than three times during a period of forty-five days, from the promulgation of this law relating to the management of the health crisis, he is punished by one year's imprisonment and a € 9,000 fine.
Also, penalties are provided for employers who require the presentation of a health pass to their employees or to the public received, in establishments, services or events not mentioned by the law of August 5, 2021.
More particularly, "is punished by one year of imprisonment and a fine of € 45,000 for requiring the presentation of the documents mentioned in the first paragraph of this F for access to places, establishments, services or events. other than those mentioned in 2 ° of A of this II ”.
6) What happens if the suspension of the employment contract continues?
The text adopted by Parliament and validated by the Constitutional Council has been removed from the provision which provided that the fact of no longer being able to exercise one's activity for a period exceeding two months due to non-compliance with the obligation to present the health pass could constitute a specific reason for dismissal.
Nevertheless, it will remain theoretically possible for employers to dismiss employees who persist in their refusal to present a health pass.
If so, it will simply not be a stand-alone reason for termination.
Therefore, the employer will have to justify a serious disorder within the company and comply with the procedure provided for by the Labor Code.
While we can welcome the abandonment of this provision which prevents redundancies from being pronounced systematically, we must nevertheless qualify this statement.
Indeed, we must not forget that during the period of suspension, the employee will not receive any income since his salary will be suspended and he will not be able to claim unemployment benefits.
Many could then find themselves in an absolutely untenable financial situation.
To avoid resorting to dismissal, employers could attempt to resort to contractual termination. 50% of contractual terminations concluded would be "disguised" layoffs.
This allows the employer to rule out the risk inherent in motivating a dismissal.
However, conventional termination is termination without cause but it requires the agreement of both parties (Work C. 1237-11 et seq. Of the labor code).
The parties will also have to agree on the amount of the specific severance indemnity: this is what can stumble the most in the negotiations, especially if the employee has a lot of seniority.
And unless it can be demonstrated that it is concluded in a context of moral harassment or that there is a defect in consent, the contractual termination will be difficult to contest by employees before the industrial tribunal.
7) Compulsory vaccination obligation against covid-19 for people working in the health and medico-social sectors
The provisions of the first bill presented by the Council of Ministers on July 19, 2021 concerning the vaccination obligation of caregivers and staff in the medical sectors, so pointed out by a part of the population defending the right to dispose of their body, have been kept by Parliament and validated by the Constitutional Council.
These provisions identify all the persons concerned by this obligation to present a health pass to exercise their activity in (in a non-exhaustive manner):
- Health establishments and army hospitals;
- Health centers;
- The nursing homes;
- Mobile care centers and teams;
- Support mechanisms for the coordination of complex health pathways;
- Tuberculosis control centers;
- Free information, screening and diagnostic centers;
- Preventive medicine and health promotion services;
- Firefighters and marine firefighters;
- Service residences intended for the reception of the elderly or disabled ...
Therefore, both people working in the private and public health sectors are affected by the vaccination obligation, except in the event of a medical contraindication.
However, a suspension of this obligation is foreseen if a decree is promulgated in this direction, after opinion of the High Authority of Health, for all or part of the categories of persons mentioned, taking into account the evolution of the health situation.
8) Penalties foreseen in the event of non-presentation of the health pass by the caregivers
Article 14 of the law of August 5th, 2021 relating to the management of the health crisis, provides for various mandatory measures and penalties relating to the failure to present the health pass by caregivers.
Indeed, it is provided that "as from the day after the publication of this law (therefore from July 26, 2021) and until September 14, 2021 inclusive, the persons mentioned above will no longer be able to exercise their activity if they have not presented the documents ” attesting to a non-contamination with Covid-19.
However, from September 15, caregivers, doctors, the entire medical profession and the staff of health establishments, will no longer be able to carry out their activity in the absence of a health pass: other documents such as the PCR test cannot be carried out. will be more sufficient.
However, it is specified that from September 15, 2021 and until October 15, 2021 inclusive, the persons mentioned above will be authorized to exercise their activity, if they can justify the administration of at least one of the required doses, and may also present a valid certificate of recovery or a medical contraindication.
Unlike the first bill that was proposed by the executive, when the employer finds that an employee can no longer exercise his activity due to a lack of health pass, he will not be able to dismiss him, but suspend his employment. contract of employment after the use of conventional days of rest or days of paid vacation while waiting to regularize his situation.
In the same way as for the employees mentioned above, the suspension of the employment contract of employees in the health sector is accompanied by the interruption of the payment of remuneration, and ends as soon as the employee meets the necessary conditions. to the exercise of its activity.
It should be noted in particular that if this period of suspension cannot be assimilated to a period of actual work for the determination of the duration of paid leave as well as for the legal or contractual rights acquired by the employee by virtue of his seniority, the However, the employee retains the benefit of the additional social protection guarantees to which he has subscribed.
Likewise, it is specified that "when an employee's fixed-term contract is suspended, the contract ends at the scheduled term if the latter occurs during the period of suspension".
The law of August 5th, 2021 provides not only for sanctions against employees impacting their employment contract, but also criminal penalties for both employees and employers.
Indeed, employees who carry out their activity without a health pass are exposed to a fine of € 135.
Employers who do not monitor compliance with the vaccination obligation are subject to a fine provided for fifth class contraventions, that is to say € 1,500 or € 7,500 then € 9,000 and one year's imprisonment. after three verbalizations, as provided for in article 2 of decree n ° 2021-1056.
All the provisions relating to caregivers and personnel in the health and medico-social sectors have been found to be in conformity with the Constitution.
9) Authorization of absence to be vaccinated
Article 17 of the law of August 5, 2021 provides that employees may be granted an absence permit so that they can be vaccinated.
More specifically, article 17 provides that "Employees, trainees and public officials are granted leave to attend medical appointments related to covid-19 vaccinations. An absence authorization may also be granted to an employee, trainee or public official who accompanies the protected minor or adult for whom he is responsible for medical appointments related to vaccinations against covid-19 ".
And obviously, "these absences do not entail any reduction in remuneration and its assimilated to a period of actual work for the determination of the duration of paid leave as well as for the legal or contractual rights acquired by the interested parties under their seniority ".
- Décision n°2021-824 DC du 5 août 2021
- Licenciement pour absence de passe sanitaire : cause réelle et sérieuse de licenciement? Article de Me Frédéric Chhum et Me Marilou Ollivier
- Décret n°2021-1056 du 7 août 2021 pris pour l'application des articles 1er et 16 de la loi n°2021-1040 du 5 août 2021 relative à la gestion de la crise sanitaire
- Décret n°2021-1059 du 7 août 2021 modifiant le décret n°2021-699 du 1er juin 2021 prescrivant les mesures générales nécessaires à la gestion de la sortie de crise sanitaire
Frédéric CHHUM, Avocat à la Cour et Membre du Conseil de l’ordre des avocats de Paris (mandat 2019-2021)
Sarah BOUSBACHER juriste CHHUM AVOCATS (Paris, Nantes, Lille) e-mail : firstname.lastname@example.org www.chhum-avocats.fr https://www.instagram.com/fredericchhum/?hl=fr .Paris: 34 rue Petrelle 75009 Paris tel: 0142560300 .Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644 .Lille: 25, rue Gounod 59000 Lille tel: 0320135083