Google and Facebook will they give ideas to French business leaders? The two American companies have announced in recent days that only vaccinated employees will now have access to their premises in the United States. Google goes even further, since it wants to extend this obligation to other offices in the world “in the coming months”.
In France, is such a policy possible? For the moment, the vaccination obligation only concerns employees in the sectors targeted by the extension of the health pass: cafes, restaurants, medical establishments. They have until August 30 (or September 15 for hospital staff) to do their two doses, otherwise they will no longer be able to work. A situation that raises many legal questions.
For the rest of the companies, “at this stage, there is no reflection on compulsory vaccination for employees working in face-to-face”, indicates the Ministry of Labor in 20 Minutes. Sabrina Kemel, associate lawyer at FTMS and specialist in labor law, recalls a few rules.
In the United States, several companies and administrations impose the anti-Covid-19 vaccine on their employees, without there being any national law. Is such a practice conceivable in France?
No. In order for all companies to be able to impose vaccination, the Public Health Code would have to be amended. It lists the compulsory vaccinations and the required vaccinations are checked by the occupational physician at the time of hiring.
This subject – vaccination obligation or not – is important and on a daily basis, I observe that many companies are lost. The bills, the law adopted, the different situations according to the trades and the sectors of activity and the statements of the government raise many questions and sow confusion. Some employers think, for example, that they should ask their salespeople to be vaccinated, when this is not the case.
The fact that the government spoke of an establishment “open to the public” with regard to the health pass adds to confusion in people’s minds. Some companies think, wrongly, that they are affected.
Can a company not subject to the health pass promote vaccination to its employees (posters, emails)? Can it specifically target a category of employees?
A company can encourage its employees to be vaccinated, but it must consult with occupational medicine. For example, it is not authorized to bring in a doctor who does not belong to this service within the company to vaccinate any volunteers.
What is striking is that occupational medicine is absent from the law adopted on July 26. It is up to the employer (for the sectors of activity concerned) to verify that its employees do indeed have a health pass when it is not their responsibility!
What is more, he does not have to request information on the state of health of his employees, this role falls to occupational medicine and to it alone. It is for this same reason that an employer cannot recommend vaccination by targeting a category of employees who, in their opinion, have comorbidities. A vaccination campaign must target all employees.
Can a company distinguish between vaccinated and unvaccinated employees?
Whether these are sectors affected or not by the health pass, the employer does not have to know which employee is or is not vaccinated, and he is not authorized to distinguish between vaccinated and unvaccinated employees. This would amount to discrimination based on state of health.
I observe that some employers are tempted to know what the vaccination status of their employees is, in particular for practical reasons. For example, some of our customers recently asked us about the possibility of putting a distinctive sign on vaccinated employees to streamline checks at the entrance of the company. It is obviously prohibited and dangerous, because it could lead to certain abuses.