July 25, Parliament adopted a bill concerning the management of the health crisis, intended to establish the system for combating the spread of COVID-19 commonly known as the "health pass." This text is currently under review by the Constitutional Council, which is expected to rule on its constitutionality on August 5. The measures provided for in this text will therefore only be applicable if they are validated by the Constitutional Council.
What is the "health pass"?
The "health pass" consists of the presentation, in paper or digital form, of a health certificate which will condition access to certain places, establishments, services or events.
- A virological screening test that did not conclude that there was contamination by COVID-19;
- Proof of vaccination status regarding COVID-19;
- A certificate of recovery following a COVID-19 infection of at least 11 days and less than 6 months.
The obligation to provide proof of possession of one of these health-related documents concerns both the public wishing to access the places, establishments, services or events concerned, and also employees who carry out their activity there.
For employees, however, the text specifies that this obligation applies when the severity of the risks of contamination related to the exercise of activities carried out in the places where they work justifies it, in particular with regard to the observed or expected population density.
This reservation thus suggests that the obligation for an employee of a company whose activity is concerned by the application of the "health pass" , to have to justify one of the required health proofs, is not systematic: it will also be necessary to demonstrate that this employee intervenes in a place particularly exposed to the risks of contamination.
What activities are covered by the application of the "health pass"?
The following activities are concerned:
- Leisure activities (including cinema, amusement parks, theatre);
- Commercial catering or beverage service activities, with the exception of institutional catering, takeaway sales of prepared meals and professional road and rail catering;
- Trade fairs, seminars and exhibitions;
- Health, social and medico-social services and establishments;
- Long-distance public transport activities within the national territory.
It should also be noted that shopping centres may fall within the scope of the "health pass", by prefectural decision.
What are the effective dates?
The effective date of the "health pass" differs depending on whether it applies to the public or to employees, with the latter being given a period of adaptation by the legislator.
For the public:
- Starting the day after the publication of the law, i.e. from August 9 according to government announcements;
For employees (with the aforementioned reservation regarding exposure to the risk of contamination):
- The “health pass” comes into effect from August 30, 2021 .
What are the obligations for companies affected by the "health pass"?
an obligation on companies concerned by the application of the "health pass" the possession of one of the required health proofs, both with the public and employees.
This obligation to verify cannot, however, extend to the verification of "official identity documents," the control of which falls under the jurisdiction of law enforcement officers.
Furthermore, it is simply a verification of possession of the "health pass", the companies concerned being prohibited from keeping the health data collected from the person checked.
It should also be noted that companies which do not fall within the scope of the "health pass" are prohibited from requiring the public or employees to present any of the health proofs provided for by the legal text.
What sanctions?
Failure to comply with their verification obligation exposes "the operator of the venue or establishment or the professional responsible for an event" to:
- A formal notice from the administrative authority ordering him to comply with his verification obligation within 24 hours;
- If the said formal notice proves unsuccessful, an administrative closure may be ordered by the administrative authority, for a maximum period of seven days;
- In the event of three repeat offences within a period of 45 days, the penalty is increased to 1 year in prison and a fine of 9,000 euros.
What should be done if an employee fails to provide proof of health?
An employer faced with an employee's refusal to provide one of the health certificates required by law must proceed as follows:
- Firstly, he has the option of using, if he wishes and with the agreement of the employee, conventional days off or paid leave days.
- If this option is not feasible, the employer must notify the employee, by any means, on the same day, of the suspension of their employment contract , which will then be accompanied by the cessation of salary payments . The suspension of the contract will end upon presentation of the "health pass" by the employee.
- If the situation continues beyond 3 working days, the employer must then summon the employee to examine whether it is possible to regularize the situation, by studying in particular the possibilities of assignment, if necessary temporary, within the company to another position not subject to this obligation.
The legislator also provides for fixed-term contracts (CDD) and temporary worker assignment contracts the possibility of terminating these contracts in the event of a failure by an employee to provide one of the required health proofs.
In a rather unusual way, the legislator specifies that this termination must take place according to the terms and conditions provided for a dismissal: the dismissal procedure must therefore be respected and the termination of the fixed-term contract or the temporary work contract will be based on "a real and serious cause for dismissal."
In the event of termination for this reason, the employee will not be entitled to the damages provided for in the event of early termination of the fixed-term contract or the mission contract, but will have to receive the end-of-contract compensation.
