Health pass for employees: these points that remain to be clarified

Thursday, the Constitutional Council validated the obligation to present a health pass for certain employees but censured the possibility of breaking the contract of employees on refractory fixed-term contracts. Employers, they deplore a "legal vagueness".

The Constitutional Council has delivered its verdict. Seized of the law relating to the management of the health crisis, the Sages validated Thursday the essential of the government project reworked by Parliament, including the obligation for employees of establishments open to the public to be provided with a pass. health from August 30.

The Council has however censored certain provisions intended for recalcitrant employees. Thus, employees on fixed-term or temporary contracts who are required to present a health pass to their employer in order to work will not be able to see their contract terminated early. And for good reason, this would have led to a breach of equality with employees on permanent contracts who are only threatened with a suspension of their employment contract.

Despite the decision rendered by the Constitutional Council, business leaders are far from having obtained the answers to all their questions. And for Eric Chevée, vice-president of the CPME (Confederation of small and medium-sized enterprises) in charge of social affairs, the introduction of the health pass in certain sectors installs a "legal vagueness", with many points which remain to be clarified.

> Will the suspended CDD contracts be extended?

Eric Chevée believes that the law on the management of the health crisis "leaves the employer in a very uncomfortable situation", in particular in the event that an employee in short contract would not have a health pass. "We don't know how the suspension of the employment contract will happen. The crucial point is whether the duration of the contract will be changed from the time of the suspension or not," he said.

In other words, will an employee who is suspended for two months while they can be vaccinated to obtain a health pass see their fixed-term contract be mechanically extended by two months once they are in good standing? "It is very important to know this. We are awaiting clarification from the Ministry of Labor on this point", claimed Eric Chevée.

With France info, the boss of the CPME, François Asselin also wonders, taking the example of a fixed-term contract recruited to deal with a peak in activity: "If I suspend the fixed-term contract, is the CDD is shifted by as much? This means that when I could re-employ my employee, if one day he is vaccinated, I would shift the CDD by the same amount? That is to say that once the peak activity would have passed, I would have to hire someone I no longer need."

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On the other hand, the law specifies that "when the fixed-term contract of an employee is suspended (...), the contract ends at the end provided if the latter occurs during the period of suspension".

> Is the suspended employee really protected from dismissal?

If the Constitutional Council has censured the possibility of breaking the contract of a CDD after two months of suspension, the employee who does not provide proof of a full vaccination or a negative test really protect against dismissal? Not so sure.

Of course, the Elders consider that the absence of a health pass cannot constitute a "real and serious cause" for dismissal. But their decision does not change the fact that the common law of the Labor Code can apply in matters of dismissal, believe some lawyers, like Déborah David, a lawyer specializing in labor law.

The only lack of health pass "is not a real and serious cause for dismissal", but other reasons may be valid, even if employers should only dismiss in case of "extreme necessity" and "Extremely well justify the decision," she told AFP.

For Christophe Noël, a lawyer specializing in labor law, he is "not at all sure that common law applies", which creates "terrible legal uncertainty".

> What are the consequences if reclassification is impossible?

In theory, an employee who does not have a health pass can continue to carry out his activity if the employer is able to place him in a position where he will not be not in contact with the public. But in practice, things will not be so simple.

Same concern for Eric Chevée who recalls that "in VSEs and SMEs in particular, jobs are not interchangeable". "It's very complicated to put the employee back in a position that is not exposed. For example, when you have a room manager who is not vaccinated and therefore does not have a health pass, you cannot not put it back easily in the kitchen, these are not the same trades", he adds, which makes him fear "a certain number of disputes". And "this is why we expect the Ministry of Labour, in the decrees that will be published, to secure the company's position".

> What support for the tests?

An employee who refuses to be vaccinated can always be tested regularly to continue his activity. But antigen and PCR tests will become chargeable in the fall: 25 euros for the first, 49 euros for the second. Then there is the question of support.

For Eric Chevée, it is "out of the question for small businesses to bear this cost". “Besides, I don’t know if it will be an authorized expense, if it is not a benefit in kind granted…”, he continues. Director of human resources at L'Oréal and deputy vice-president of ANDRH (National Association of HRDs), Benoît Serre is more nuanced. "The day when the tests will be paid for, legal logic would have the company take charge of the test" from the moment it "must give paid time to the employee to go and be vaccinated or tested", estimates- he.