After being partially censored by the Constitutional Council, the law relating to the management of the health crisis (law n ° 2021-1040) was finally adopted on August 5, 2021.
Establishing a vaccination obligation for caregivers and an obligation to present the health pass for access to various places and activities, this text has given rise to many debates and important questions.
With regard more particularly to its labor law section, the text has undergone several changes since the draft presented by the Government.
Indeed, the Senate had already rejected the provisions providing that the failure to present the health pass after 2 months of suspension of the employment contract could constitute an independent reason for dismissal for employees employed under CDI.
As a result, the Constitutional Council censured the provisions which provided for the early termination of fixed-term contracts or temporary contracts for lack of a health pass.
Nevertheless, the implications of this law relating to the management of the health crisis remain considerable in terms of labor law and it is a safe bet that it will give rise to numerous and various disputes in the months and even years to come.
1) Which employees are covered by the obligation to present the health pass?
As of August 30, 2021, employees of establishments open to the public will be required to provide proof of a valid health pass in order to be able to work.
The list of activities concerned is set out in Article 1 of the bill, which is:
- Leisure activities;
- Commercial catering activities (except collective catering and professional road and rail catering) and the start of drinks;
- Trade fairs, seminars and trade shows;
- Health, social and medico-social services and establishments for accompanying persons, visitors and scheduled patients (except in emergencies);
- Public and long-distance transport activities on national territory (except in emergencies); and
- Department stores and shopping centers listed by the Prefect of the department.
In the establishments in which the activities mentioned below take place, employees will have to justify a health pass "when the seriousness of the risks of contamination in connection with the exercise of the activities carried out there justifies it",
In this regard, a crucial point therefore remains to be clarified: the criteria according to which the seriousness of the contamination risks will be considered as sufficiently established to justify the implementation of this obligation.
2) What happens if a health pass is not presented?
An employee who does not have a health pass will not be able to continue working and his employment contract must be immediately suspended, unless he has taken - with the agreement of his employer - days of paid vacation or RTT.
During the suspension of his contract, the payment of the employee's remuneration will be interrupted and he will not be able to claim any replacement income.
The suspension will end immediately as soon as the employee presents a valid health pass.
If after 3 days of suspension, the employee still does not present the required supporting documents, his employer will have to invite him to an interview, the purpose of which will be to discuss means of regularizing the situation.
In particular, the employer may offer him a temporary reclassification to a position that does not require proof of a health pass.
3) What happens if the suspension of the employment contract continues?
A distinction must be made between the situation of employees on permanent contracts and that of employees on fixed-term contracts or temporary employment contracts.
3.1) For employees on permanent contracts
The final text has been removed from the provision which provided that the fact of no longer being able to exercise one's activity for a period of more than 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.
In addition, during this period, the employee will not acquire any paid leave or seniority.
3.2) For employees on fixed-term contracts or temporary employment contracts
If the text adopted by Parliament maintained the possibility of terminating fixed-term contracts and temporary employment contracts in advance due to the lack of presentation of the health pass, the Constitutional Council finally censured this provision which, according to it, violated the principle of equality.
However, the situation is not exactly the same as that of employees on fixed-term contracts.
Indeed, the early termination of this type of contract is limited to cases of force majeure, serious fault or incapacity.
However, in our view, failure to present a valid health pass is not likely to fall into any of these categories so that the contract cannot be terminated before its end.
Whether it concerns employees on CDI, CDD or temporary employment contract, it will therefore be necessary to be particularly vigilant in the presence of a rupture related to the lack of health pass to ensure that the rupture is objectively justified. and that all procedural guarantees have been respected.
Loi n°2021-1040 du 5 aout 2021 relative à la gestion de la crise sanitaire
Frédéric CHHUM, Avocat à la Cour et Membre du Conseil de l’ordre des avocats de Paris (mandat 2019-2021)
Marilou OLLIVIER avocate
CHHUM AVOCATS (Paris, Nantes, Lille)
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