Can an employer require compulsory COVID-19 vaccination? If yes, are there any exceptions or special circumstances that an employer must consider?
No, under French law, employers cannot compel compulsory COVID-19 vaccination.
Mandatory vaccination of the employees is, to date, limited by the French Public Health Code to some specific professional sectors. As such, a person who, in a public or private institution or organization providing preventive care or housing the elderly, carries out a professional activity that exposes him or the persons for whom he is responsible to risks of contamination must be immunized against hepatitis B, diphtheria, tetanus, poliomyelitis and influenza. Also, persons working in a medical biology laboratory must be immunized against typhoid fever.
Article R4426-6 of the Labour Code provides for a mere recommendation of vaccination where the employees may be exposed to biological pathogens (such as COVID-19): “The employer may recommend, where appropriate and on the proposal of the Labour Doctor, to employees who are not immunized against the pathogenic biological agents to which they are or may be exposed, to carry out, at his expense, the appropriate vaccinations". Nevertheless, employees remain free to refuse the recommendation for vaccination.
Can employees refuse to be vaccinated? How does an employer need to balance its obligation to provide a safe work environment with an employee’s rights?
Yes, as employees are not compelled to get a vaccination against COVID-19.
The balance here will tilt in favor of the employees’ fundamental rights to refuse to be vaccinated, although the employer may – as a precautionary measure – require that employees telework in order to avoid any hazardous situation in the workplace.
In the event of a refusal, can an employee be dismissed for refusal to comply with the employer’s vaccination policy? Will the employee’s refusal constitute just cause for termination?
No, a dismissal based on the employee’s refusal to get vaccination would be considered as a discriminatory termination and would be nullified by the Labour Court. In such case, the employee could ask for reinstatement in his previous position (with back wages paid concurrently) or, if he refuses to be reinstated, he may get damages amounting to no less than 6 months’ salary (this amount may be increased depending on the employee’s age and length of service at the time of the dismissal).
What benefits or accommodations do employers have to make for vaccinated employees?
No specific benefits or accommodations have to be implemented for vaccinated employees. Indeed, vaccination falls under the scope of medical secrecy therefore employers cannot acknowledge which employees are vaccinated or not in the companies. In addition, and as vaccination is not mandatory in France, specific benefits or accommodations for vaccinated employees would be considered as unequal treatment, which is illegal under French law.
Can vaccinated employees refuse to work in the same vicinity as employees who are not vaccinated?
Employees cannot refuse to work in the same vicinity as employees who are not vaccinated, otherwise, they may be subject to disciplinary sanctions.
However, employers are required to offer a safe workplace for all employees, whether vaccinated or not. This means that all employees must be offered by their employer working conditions aiming at the very limitation of contacts from time to time.
In your country, are employers required to provide paid leave for employees to get vaccinated?
No paid leave has been implemented to allow employees to get vaccinated, unless the employees get vaccination with the Occupational Doctor.
In such a case, the Labour Ministry provides that “if the employee chooses to go through his occupational health service, he is authorized to be absent during his working hours. No work stoppage is necessary and the employer cannot oppose his absence in any way. The employee informs his employer of his absence for a medical examination without having to specify the reason.”
If the employee chooses to get vaccination with his own doctor, the Labour Ministry provides that “there is no automatic leave of absence. However, employers are encouraged to facilitate employees' access to vaccination. The employee is invited to contact his or her employer in order to determine, through dialogue, the best way to organize the vaccination.”
Fabien Pomart, Soulier Avocats