Companies faced with the institution of the "sanitary pass"

July 25, Parliament adopted a bill relating to the management of the health crisis which aims to put in place the system to combat the spread of covid-19 commonly called "sanitary pass". This text is currently being examined by the Constitutional Council, which is supposed to rule on its compliance on August 5th . The measures provided for by this text will therefore only be applicable if they are validated by the Constitutional Council.

• The “sanitary pass”, what is it?
• What are the activities concerned by the application of the "sanitary pass"?
• What are the effective dates?
• What are the obligations for the companies concerned by the “sanitary pass”?
• What penalties?
• What should be done in the event of an employee failing to fulfill his obligation to present health proof?

The “sanitary pass”, what is it?

The "health pass" consists of the presentation, in paper or digital form, of health proof which will condition access to certain places, establishments, services or events.

The obligation to justify the possession of one of these health proofs concerns both the public wishing to access the places, establishments, services or events concerned, but also the employees who carry out their activity there.

For employees, the text specifies however that this obligation applies when the seriousness of the risks of contamination in connection with the exercise of the activities which are practiced in the places where they intervene justifies it, in particular with regard to the population density observed. or planned.

This reservation is thus likely to suggest that the obligation for an employee of a company whose activity is concerned by the application of the "sanitary pass" , to have to provide proof of one of the required health proofs, is not systematic: it will also be necessary to demonstrate that this employee works in a place particularly exposed to the risk of contamination.

What are the activities concerned by the application of the "sanitary pass"?

The following activities are concerned:

• Leisure activities (in particular, cinema, amusement park, theatre);
• Commercial catering or drinking establishment activities, 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;
• Long-distance public transport activities within the national territory.

It should also be noted that shopping centers may fall within the scope of application of the "sanitary pass", by decision of the prefect.

What are the effective dates?

The date of entry into force of the "sanitary pass" is different depending on whether it applies to the public or to employees, a time of adaptation being indeed left to the latter by the legislator.

For the public:

• From the day after the publication of the text of the law, i.e. from next August 9 according to government announcements;

For employees (with the aforementioned reservation on exposure to the risks of contamination):

• The “sanitary pass” comes into effect from August 30, 2021 .

What are the obligations for the companies concerned by the “sanitary pass”?

The "sanitary pass" imposes on the companies concerned by the application of the "sanitary pass" an obligation to verify the possession of one of the required health proofs, both from the public and from the employees.

This obligation to verify cannot, however, go so far as to verify “official identity documents”, the control of which is the responsibility of law enforcement officials.

It is also a simple verification of the possession of the "sanitary pass", the companies concerned being prohibited from keeping the health data collected from the person checked.

It should also be specified that companies that do not fall within the scope of the "health pass" are prohibited from requiring the presentation by the public or employees of one of the health proofs provided for by the legal text.

What penalties?

In the event of non-compliance with its obligation to verify, "the operator of the place or establishment or the professional responsible for an event" is liable to:

• A formal notice from the administrative authority ordering him to comply with his obligation to verify within 24 hours;
• If said formal notice proves unsuccessful, an administrative closure which may be ordered by the administrative authority, for a maximum period of seven days;
• In the event of a triple recidivism within a period of 45 days, a penalty increased to 1 year in prison and a fine of 9,000 euros.

What should be done in the event of an employee failing to fulfill his obligation to present health proof?

An employer faced with the refusal of one of his employees to present him with one of the health proofs required by the legal text must proceed as follows:

• Firstly, he has the possibility of mobilizing, if he wishes and with the agreement of the employee, conventional rest days or paid vacation days.
• If this possibility is not feasible, the employer must then notify the employee, by any means, on the same day, of the suspension of his employment contract , which will then be accompanied by the interruption of the payment of remuneration . The suspension of the contract will end when the employee presents the "sanitary pass".
• If the situation continues beyond 3 days worked, the employer must then summon the employee to examine whether it is possible to regularize the situation, in particular by studying 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 employee assignment contracts the possibility of terminating these contracts in the event of an employee failing to fulfill his obligation to present one of the required health proofs.

In a rather specific 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 assignment contract will be based on "a real cause and serious dismissal. »

In the event of termination for this reason, the employee cannot claim the damages provided for in the event of early termination of the fixed-term contract or the assignment contract, but must receive the termination indemnity.