Compulsory health pass for employees: a blow "for young people and precarious" obligation of safety "an unacceptable pressure"

Will the era of the generalized health pass also that of a decline in workers' rights?It is the fear of several unions, lawyers, institutions or elected officials who point, these days, possible drifts caused by the obligation to present a valid health pass to work in several sectors in contact with the public.As of August 30, the government's bill provides that "people who intervene" in places welcoming the public present a valid health pass (double vaccination, covid recovery certificate or recent negative test) to work there.Employees and agents working in leisure areas (amusement parks, museums, cinemas, theaters, swimming pools, etc.) are therefore concerned, EHPAD, restaurants, restaurants, department stores or shopping centers but also railway workers for example.

Employers will be responsible for controlling the health pass.If an employee or an agent refuses to submit to it, his hierarchy may notify him "by any means" (therefore oral or written) the suspension of his functions or his employment contract, without remuneration.The suspension may end "as soon as the interested party produces the required documents".But if he has still not done it after five days, the law provides that he is summoned to an interview "in order to examine with [him] the means to regularize his situation".In cases where this situation would last beyond two months, his employer will have a specific reason to dismiss him (for personal reasons, with compensation) or put an end to his functions.

This is a relaxation in relation to the initial bill, which provided that the termination of the employment contract is automatic.But it is still a form of legal innovation, in which the defender of rights detects "discriminatory risks [...] particularly present"."The measures provided for by the bill have the consequence of ultimately making a distinction between workers holders of one of the three documents requested and the others," alerts Claire Hédon in a statement published on Tuesday.An argument also advanced by the Syndicat des Avocats de France (SAF).Lawyers interviewed last week by AFP also found the government project "shocking in terms of law" in that he refers the employee or the agent to quasi-obligation to be vaccinated, except to tolerateto be tested every two days.

Positions that nuance Emmanuel Dockès, associate professor in labor law in Paris Nanterre.According to him, if the path taken by the government is indeed new and questionable from a formal point of view, it is based on a logic "completely traditional, namely the idea that the employer is required to enforce the rulessecurity in your business "."When the employer imposes safety rules such as a harness when working in height or a mask in the chemistry trades, he is responsible for enforcing these rules and the employees are subject to his disciplinary power", explains-he.Consequently, "if the behavior of an employee can be qualified as dangerous, it is possible to use a conservatory suspension of his contract".

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On the union side, the CGT denounces, in a statement this Wednesday, a text "which would undermine [the] freedom to work".And is opposed "to the method which consists in weighing responsibility on the individual and not on the collective", explains Confederal Secretary Nathalie Verdeil to Liberation."It is ubiquitous to make the sanction on the employee today when, for more than a year, the government has always been content to make recommendations to employers."An argument joined by Emmanuel Dockès:" An obvious lack of the project is to have planned anything concerning occupational medicine.We have an occupational medicine, one wonders how it was not even planned to ask the employer to organize a medical appointment for the employee at vaccination.»»»»

Employers are still threatened with a fine if by chance they do not control their customers or their employees.Which also raises other concerns.Thus, the defender of rights "questions the choice of granting public and private enterprises a form of police power"»». «Ce contrôle devrait relever des autorités publiques, compte tenu des risques inhérents à l’exercice d’un tel pouvoir»»»», écrit-elle. A la CFDT, la secrétaire nationale Catherine Pinchaut craint que cette décision n’engendre des «conflits potentiels»»»» aussi bien entre employeurs et salariés qu’entre salariés et clients ou usagers. «On nous délègue une fonction qui n’est pas la nôtre»»»», relevait aussi, mardi, le président de la confédération des petites et moyennes entreprises (CPME), François Asselin.While adding: "If we have to go there to fight against the pandemic, we are ready there.»»»»

Beyond the risks of legal disputes still difficult to identify, unions also criticize the government for putting under pressure, through these new provisions, of employees often located at the bottom of the scale. «Ce projet de texte prévoit des délais d’application très courts alors même qu’une part importante des populations jeunes ou précaires n’a pas encore eu accès à la vaccination et que les délais pour un premier rendez-vous s’allongent, faisant porter une pression inacceptable sur cette population»»»», écrit la CGT. La FSU Territoriale rappelle, elle, que «la campagne de vaccination n’a été ouverte à l’ensemble de la population adulte que depuis le 31 mai 2021»»»» et que la prise de rendez-vous se fait essentiellement sur Internet, ce qui pénalise nombre de personnes éloignées des outils numériques.Present in local communities, the union wonders: "While the workforce of personal assistance or nursing services are already in tension, how can we justify preventing agents from working at the risk of aadditional degradation of the service rendered? ”»»»

Invited Tuesday evening on BFM TV, the Minister of Labor, Elisabeth Borne, has been open to development of the bill by saying that "the objective is really that we find solutions for employees"»»».This Wednesday, the government filed several amendments, including one aims to "plan the possibility of placing leave time to carry out the necessary steps [...] and to examine the possibilities of reclassification on another position "»»».