From Monday, August 30, 2021, the presentation of a health pass becomes compulsory for certain employees, in accordance with Law No. 2021-1040 of August 5, 2021 relating to the management of the health crisis which has been deemed to be in conformity with the Constitution.
Around 1.8 million employees are then affected by the obligation to present a health pass, and 2.7 million caregivers in the private and public sectors who are subject to the vaccination obligation, until at least November 15, date the end of the transitional regime to end the health crisis.
We will address the following questions as TRUE or FALSE:
- Does obtaining a health pass necessarily imply the justification of a complete vaccination schedule?
- Are all employees affected by the obligation to present a health pass?
- Do health professionals have to be vaccinated?
- Wearing a mask is no longer compulsory if I have a health pass?
- Wearing a mask is no longer compulsory if I have a health pass?
- Can my employer offer me a contractual termination for failure to present a health pass?
- If you agree to negotiate your contractual termination due to the lack of a health pass, how much should you negotiate?
1) Does obtaining a health pass necessarily imply the justification of a complete vaccination schedule?
The health pass can be obtained by presenting a complete vaccination schedule but also by other means.
Indeed, Decree No. 2021-1059 of August 7, 2021 redefined the concept of a health pass which can now be obtained in the following four ways:
- By justifying the absence of contamination by Covid-19 by presenting an RT-PCR screening examination or an antigen test or even a self-test carried out under the supervision of a health professional for up to 72 hours;
- By the justification of a complete vaccination schedule. The latter is considered complete one week after the second dose of Covid-19 vaccine, or after the single dose of vaccine for people who have already been infected;
- By proof of a certificate of recovery following a Covid-19 infection, valid for 6 months;
- By proof of a certificate of medical contraindication to vaccination.
2) Are all employees affected by the obligation to present a health pass?
Only employees who work in places where entry to users and visitors is subject to the obligation to present a health pass, are also affected by this same obligation.
Law n ° 2021-1040 of August 5, 2021 relating to the management of the health crisis, specifies the different places and establishments in which the health pass is now compulsory for the employees who work there:
- Leisure activities (cinema, theater, libraries, etc.);
- 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).
3) Do health professionals have to be vaccinated?
An exception has been made for healthcare professionals, who, unlike the other employees mentioned above, must not only present a health pass, but justify a complete vaccination schedule.
Law n ° 2021-1040 of August 5, 2021 relating to the management of the health crisis indeed provides that caregivers and health and medico-social service personnel must be vaccinated in order to continue to exercise their functions.
More precisely, according to the details provided by the Ministry of Solidarity and Health, the employees concerned, whether in the private or public sector, are those who work in:
- Health establishments and army hospitals;
- Health centers and houses;
- Support mechanisms for the coordination of complex health pathways mentioned in II and III of Article 23 of Law No. 2019-774 of July 24, 2019 on the organization and transformation of the health system;
- Mobile care centers and teams;
- Centers for the fight against tuberculosis (CLAT);
- Free Information, Screening and Diagnostic Centers (CeGIDD);
- Preventive Medicine and Health Promotion Services;
- Prevention and occupational health services;
- Educational establishments or services which mainly provide adapted education and social or medico-social support to minors or young adults with disabilities or with adjustment difficulties: IME, IEM, ITEP, EEAP, IDA, IDV, INJA, INJS, SESSAD, SAFEP, SSEFS , CMPP;
- Early medico-social action centers (CAMSP);
- Establishments and services for assistance through work (ESAT) and pre-orientation centers (CPO) and vocational rehabilitation (CRP): only the professionals of these structures are concerned, and not people with disabilities benefiting from 'a contract of support and help through work;
- Establishments and services which welcome the elderly or provide them with home help (EHPAD, PUV, RA, USLD, SSIAD, SPASAD, SAAD, day reception centers);
- Service residences;
- Establishments and services, including nursing homes, which welcome disabled people: MAS, FAM, accommodation homes, living homes, occupational homes, SAMSAH, SAVS, SSIAD, UEROS;
- So-called “specific medico-social” establishments (LAM, LHSS, CSAPA, CAARUD, ACT);
- Experimental establishments and services;
- Residential homes only when they are dedicated to the reception of elderly or disabled people (which includes residential homes for the elderly, reception residences for people with mental disabilities, but excludes homes for migrant workers);
- Inclusive habitats;
- Firefighters and marine firefighters;
- Flight and military personnel permanently assigned to civil security missions;
- Members of approved civil security associations (for their civil security activities only, eg French Red Cross staff and volunteers intervening in non-civil security activities are not affected by the obligation);
- People in charge of medical transport and transport on medical prescription (including taxis for journeys made under L. 322-5 of the public health code);
- The service providers and distributors of equipment mentioned in Article L.5232-3 of the Public Health Code;
- Health professionals mentioned in the fourth part of the public health code (doctors, midwives, odontologists, pharmacists, pharmacy assistants, medical physicists, pharmacists, nurses, masseur-physiotherapists, chiropodists, occupational therapists and psychomotor therapists, speech therapists and orthoptists, medical electroradiology technicians and medical laboratory technicians, hearing aid specialists, opticians and eyewear, prosthetists and orthotists, dieticians, nursing assistants, childcare auxiliaries and ambulance attendants, etc.);
- People working in the same premises as the professionals mentioned above;
- Students or pupils of establishments preparing for the exercise of these professions.
This list can be viewed on the website of the Ministry of Solidarity and Health (https://solidarites-sante.gouv.fr/grands-dossiers/vaccin-covid-19/je-suis-un-professionnel-de-sante-du-medico-social-et-du-social/obligation-vaccinale).
It should also be specified that, from September 15 to October 15, 2021, “a tolerance is applied for agents and persons having a partial vaccination schedule, and who present a proof of negative result of a virological screening test of less than 72 hours” according to the response provided by the Ministry of Solidarity and Health.
Likewise, no distinction is made between teleworking and face-to-face employees regarding the obligation to present a health pass.
4) Wearing a mask is no longer compulsory if I have a health pass?
According to the national protocol to ensure the health and safety of employees in the face of the Covid-19 epidemic of the Ministry of Labor, Employment and Integration updated on August 9, 2021, the wearing of the mask n t is more obligatory in individual offices, since there is only one person present.
Likewise, in workshops, wearing a mask is no longer compulsory as long as the ventilation / aeration conditions comply with regulations and the number of people is limited.
The protocol also specifies that "the obligation to wear a mask is not applicable to people who have entered establishments, places, services and events subject to the obligation to present the health pass", including employees who must therefore now present a health pass.
However, the operator of places subject to the obligation to present a health pass, as well as the departmental prefect, can still make it compulsory to wear a mask if the circumstances justify it.
5) Can I be dismissed for not having presented a health pass?
True and false.
Unlike the initial bill when the 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 leave pending receipt of these documents, then his employment contract will be suspended and not terminated.
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 regularize their situation, in particular the possibilities of assignment, within the company to another position 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.
During the period of suspension of his contract, 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 untenable financial situation.
Because if the suspension of the employment contract continues, the employer still has the possibility of terminating the employment contract.
Indeed, it will remain theoretically possible for employers to dismiss employees who persist in their refusal to present a health pass.
So if the failure to present a health pass to validly dismiss an employee does not constitute an independent reason for dismissal, the employer will have to justify a disorder characterized within the company (See our brief "Dismissal for lack of pass health: real and serious cause of dismissal? ” https://www.village-justice.com/articles/licenciement-pour-absence-passe-sanitaire-cause-reelle-serieuse-licenciement,39848.html).
6) Can my employer offer me a conventional termination (rupture conventionnelle) for failure to present a health pass?
To avoid resorting to dismissal, employers could attempt to resort to contractual termination.
In this way, 50% of contractual terminations concluded would be “disguised” dismissals.
Indeed, this allows the employer to rule out the risk inherent in the motivation for a dismissal, because a contractual termination does not require to justify a reason, unlike a dismissal.
But if the contractual termination is a termination without cause, it nevertheless requires the agreement of both parties in accordance with article L.1237-11 of the labor code: “The employer and the employee may jointly agree on the terms of the contract. breach of the employment contract which binds them ”.
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) If you agree to negotiate your contractual termination (rupture conventionnelle) due to the lack of a health pass, how much should you negotiate?
In the event of contractual termination of the employment contract, the parties will have to agree on the amount of the specific termination indemnity: this is what can most stumble in the negotiation, especially if the employee has a lot of seniority.
It is for this purpose interesting to determine how much to negotiate its conventional rupture.
In this way, the employer must pay at least a specific indemnity for contractual termination, the amount of which cannot be lower than the termination indemnity stipulated by the collective agreement applicable in the employee's company, or failing that, to the employee. legal severance pay.
To negotiate at best, it is necessary to "benchmark" according to the sum that the employee could obtain in court in the event of unfair dismissal.
Thus, the contractual termination indemnity to be negotiated must amount to the sum of the following four amounts:
1. Compensatory compensation for notice: the length of your notice is provided for by the Collective Agreement applicable in your company (generally 1 to 3 months depending on whether you are an employee or an executive) or, failing that, by article L1234-1 of the Labor Code (1 to 2 months depending on your seniority);
2. Compensation for paid leave on notice, equal to 10% of the gross amount of your compensation for notice;
3. The contractual termination indemnity or, failing that, the legal termination indemnity;
4. A "supra-legal" indemnity calculated on the basis of the maximum indemnity provided for by the scale of prudential indemnities for dismissal (see our previous brief:
- If you have less than 1 year of seniority: the equivalent of 1 month's salary;
- If you have 1 year of seniority: the equivalent of 2 months' salary;
- If you have 2 years of seniority: the equivalent of 3.5 months' salary;
- If you have 3 years of seniority: the equivalent of 4 months' salary;
- If you have 4 years of seniority: the equivalent of 5 months' salary;
- If you have 5 years of seniority: the equivalent of 6 months' salary;
- If you have 6 years of seniority: the equivalent of 7 months' salary;
- If you have 7 to 8 years of seniority: the equivalent of 8 months' salary;
- If you have 9 years of seniority: the equivalent of 9 months' salary;
- If you have 10 years of seniority: the equivalent of 10 months' salary;
- If you have 11 years of seniority: the equivalent of 10.5 months' salary;
- If you have 12 years of seniority: the equivalent of 11 months' salary;
- If you have 13 years of seniority: the equivalent of 11.5 months of salary;
- If you have 14 years of seniority: the equivalent of 12 months' salary;
- If you have 15 years of seniority: the equivalent of 13 months' salary;
- If you have 16 years of seniority: the equivalent of 13.5 months' salary;
- If you have 17 years of seniority: the equivalent of 14 months' salary;
- If you have 18 years of seniority: the equivalent of 14.5 months' salary;
- If you have 19 years of seniority: the equivalent of 15 months' salary;
- If you have 20 years of seniority: the equivalent of 15.5 months' salary;
- If you have 21 years of seniority: the equivalent of 16 months' salary;
- If you have 22 years of seniority: the equivalent of 16.5 months' salary;
- If you have 23 years of seniority: the equivalent of 17 months' salary;
- If you have 24 years of seniority: the equivalent of 17.5 months' salary;
- If you have 25 years of seniority: the equivalent of 18 months' salary;
- If you have 26 years of seniority: the equivalent of 18.5 months' salary;
- If you have 27 years of seniority: the equivalent of 19 months' salary;
- If you have 28 years of seniority: the equivalent of 19.5 months' salary;
- If you have 29 years of seniority or more: the equivalent of 20 months' salary.
The salary to be taken into consideration for the calculation of the termination indemnity is, according to the most advantageous formula for the employee, either one twelfth of your gross remuneration for the last twelve months preceding the termination, or one third of the last three months.
Finally, it should be noted that the negotiation must be done on a net amount (and not gross), the compensation paid in the context of a contractual termination being submitted to CSG / CRDS.
(See our brief: “Employees, executives, senior executives: how much to negotiate his contractual termination after the Macron orders?” Https://www.village-justice.com/articles/salaries-cadres-cadres-dirigeants-combien-negociation- conventional-rupture, 27827.html)
- Law n ° 2021-1040 of August 5, 2021 relating to the management of the health crisis
- Questions / Answers The vaccine obligation, Ministry of Solidarity and Health
- National protocol to ensure the health and safety of company employees in the face of the Covid-19 epidemic, Ministry of Labor, Employment and Integration
- Health pass and employees: what do the law of August 5 and the decrees of August 6, 2021 provide? Frédéric Chhum and Sarah Bouschbacher
- Dismissal for lack of health pass: real and serious cause of dismissal? Frédéric Chhum and Marilou Ollivier
Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
Sarah BOUSCHBACHER juriste
CHHUM AVOCATS (Paris, Nantes, Lille)
.Paris: 4 rue Bayard 75008 Paris tel: 0142560300
.Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644
.Lille: 25, rue Gounod 59000 Lille tel: 0320135083