Coronavirus: Could the corporate health pass be introduced in France?

To fight against the arrival of the new variant Omicron , the Prime Minister had warned: “any useful provision” would be studied by the executive. Among them, the extension of the health pass to all private and public employees. But Tuesday evening, at the end of a day of consultations with the leaders of the parliamentary groups, Matignon finally made a decision. This generalization will not appear in the future bill on the vaccine pass . Already required since 30 August 2021 for the two million employees of bars, restaurants or establishments open to the public, the health pass extended to all companies was received coldly by trade unions and employers.

This measure could nevertheless come back more faster than expected in the public debate. An amendment could thus be tabled by parliamentarians during debates scheduled for January 3 in the National Assembly. “If the majority of parliamentarians decided in their wisdom that it was necessary to extend the pass to work and if we considered that it was in accordance with the law (…) in this case I think that we could be led to support it “, Affirmed the Minister of Health, Olivier Véran , this Wednesday morning on BFMTV and RMC.

How does it work for the employees already concerned? Currently, the corporate health pass only concerns employees, volunteers, service providers, temporary workers or subcontractors working in establishments where users and clients are themselves subject to this pass. The sectors of catering, culture and long-distance transport (TGV, plane) are therefore the main branches concerned. The law on the management of the health crisis adopted this summer has however provided for some exceptions. When the employees of these companies carry out their activities in spaces which are not accessible to the public – in closed offices or kitchens, for example – or if they work outside opening hours to the public, they are not obliged to present their pass to their employer.

According to the law, it is the persons in charge of these places or the organizers of the events subject to the pass who are the authorities to check the supporting documents of the employees. They can delegate this mission but are obliged to keep a register specifying who is authorized to control the passes, when and what controls have been carried out. To facilitate these procedures, the persons in charge or persons in charge of the control of the pass can scan the QR Code of the employees with the application “TousAntiCovid Verified”.

What are the penalties provided for in the event of non-compliance? For an employer, the lack of control employee passes may result in a formal notice, then an administrative closure of 7 days in the event of non-compliance. If a manager repeats three times over a period of 25 days, he exposes himself to one year in prison and 9. euros fine.

For employees, the penalties differ. First, if an employee does not have a valid pass, they can take days off or leave the time to comply. In the event of refusal, on the other hand, the employer can suspend the employment contract and the remuneration of the employee. At the end of the 3rd day of suspension, an interview can be organized with the employer to examine the means of regularizing the employee’s situation. “But if the pass is generalized to 25 millions of private and public sector employees, the issue of sanctions will undoubtedly be the one that risks generating the most tensions and litigation, ”acknowledges the lawyer specializing in labor law, Olivier Angotti.

Is it possible to expand this system to all employees? “ The law of August 5 already details all the modalities of application of the pass and establishes a sanction regime. If the device were to apply to all employees, it is likely that the legislator will follow the one already in place. And if catering and transport companies have succeeded, there is a chance that private companies will also succeed, ”Judge Olivier Angotti. To facilitate the deployment of controls and avoid having to scan their pass daily, the employees currently concerned can voluntarily present proof of vaccination to their employer, indicates the CNIL (National Commission for Informatics and Freedoms). But this process cannot be imposed by the employer and the control of the pass must remain possible for employees who do not wish to benefit from a simplified title.

Finally, the The issue of respecting medical confidentiality raises concerns on the part of trade unions. On this point, idem, the CNIL currently imposes a precise framework. Only the pass in paper or digital format can be requested. An establishment manager cannot require from an employee precise information on his status or his vaccination schedule (how many doses received, dates of injections, etc.), nor information relating to his intention to be vaccinated or not. , or request the result of a screening test. “We must not forget that at present, near 90% of the adult population is vaccinated and therefore has a valid health pass. If the application of daily checks can be restrictive in some companies, it will not be insurmountable “, slice Olivier Angotti.