After validation by the Constitutional Council, the law on the extension of the health pass was promulgated.
It will concern employees in contact with the public from August 30.
"20 Minutes" asked a labor lawyer how employers will be able to apply these new rules.
Back to school will be closely scanned at work.
In companies open to the public, people in contact with them must present a valid health pass, from August 30.
The law is not only voted but now validated by the Constitutional Council.
What will this change on the employer side?
Do they have to prepare for an administrative puzzle?
Is the employer obliged to suspend an employee without a pass?
A bit like a bar owner who is resistant to the sanitary pass for his customers, he has no choice either for his employees: he must enforce the law. Otherwise, fines can fall, exactly as for not respecting the control of passes on his terrace, for example. "There will be checks where you will be asked to prove that you have scanned your employees," explains
Diane Reboursier, lawyer in labor law at August Debouzy
Consequently, if during the scan one of the employees does not have a valid health pass, the employer will have to dispense with their services at least temporarily: until the situation returns to order. and that a valid health pass is obtained, by taking leave, or the time of a suspension of the employment contract, as provided for in the law passed at the end of July and validated Thursday by the Constitutional Council.
What formalities before a suspension?
“There are a lot of steps,” notes Diane Reboursier.
It all starts with a letter that the employer must send to the offender to notify a three-day suspension.
“The employer can also see if his employee has a balance of paid vacation or RTT, which can replace the suspension.
But it is not compulsory, no one is forced.
And if there is not, it will therefore be a suspension, ”explains the lawyer.
At the end, if the employee is still not in good standing, his or her hierarchical superior must summon him or her to an interview to examine the possibilities of regularization or reclassification in the company to a position where the health pass is no longer valid. is not necessary.
If this interview is unsuccessful, the suspension continues, within a limit of two months.
Can the employer find himself firing against his will at his expense?
We have already understood that an employer who drags his feet in the face of the health pass does not have a choice anyway, at the risk of paying a fine.
There is also little chance that he or she will have to separate from an employee against his or her will.
First for a calendar reason: "Employees are only concerned from August 30, however the maximum period of suspension is two months, which brings us at the end of October ... two weeks before the end of the law. on the health pass, ”explains Diane Reboursier.
Not to mention that not having a health pass is ultimately not a valid reason for dismissal.
Even if the Minister of Labor, Elisabeth Borne, affirmed that there could be layoffs after the two months, it will still be necessary to find a "valid and serious cause", as the law indicates it.
The lawyer interviewed by
noted a clarification from the Constitutional Council that went unnoticed: “It is well said that in view of the parliamentary work, we cannot dismiss for lack of health pass.
This is a way of signaling that it is not the minister's statements that count, but the text.
Are abuses possible?
“There will inevitably be attempts,” imagines Diane Reboursier, but it should only be marginal.
And then abuse can take place on both sides.
"Take advantage of this law to suspend an employee without reason, a fortiori a protected employee, it can be attacked for disguised disciplinary sanction".
Even if we do not yet know how the industrial tribunals will react to such a case, the lawyer imagines that the councils will be vigilant.
Medical secrecy, potentially undermined by the health pass, also appears to be protected according to the lawyer: “We have a pass with a complete vaccination or a recent negative test.
So theoretically, even if of course people talk, it is normal, the employer does not have to know.
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