Covid-19: Can employers impose vaccination on employees?

In order to fight against Covid-19, it has been decided in France, as in many other countries, to encourage vaccination at the workplace. However, vaccination is not statutory for all employees.

Who should get vaccinated?

A law dated August 5th, 2021 lists establishments concerned by the vaccination obligation. This mainly concerns the health sector.

Employees working in establishments or whose occupation is mentioned in Article 12 of the Law are consequently subject to the obligation to be vaccinated.

Also, employees of service providers who are usually operating in the premises of a company subject to the vaccination obligation, are also subject to said obligation.

However, if these persons execute occasional tasks in said premises, they are exempted.

The Labour Ministry has defined an occasional task in its Q&A as a “very brief and non-recurring intervention. It is not linked to the normal and permanent activity of the company. The workers who perform these tasks are not integrated into the workforce and do not carry out their activity in relation to the public” (for example: intervention of a delivery company).

Can the employer ask its employees and/or service providers whether they are vaccinated?

If employees (or service providers) are not subject to the obligation of vaccination as per the above-mentioned provisions, the employer cannot ask about employees’ or service providers’ status of vaccination, nor require them to be vaccinated.

What is the applicable timetable for employees to be vaccinated?

When statutory, the following timetable has been set for vaccination:

Since August 9, 2021, all employees working in medical establishments must be vaccinated, unless otherwise medically indicated.

However, this obligation will be rolled-out as follows:

employees had the possibility to present one of the following documents:

• A vaccination certificate,
• The result of a positive PCR or antigenic test, proving the recovery from Covid-19 and dated from at least 11 days and less than 6 months
• A negative result of a virological test of less than 72 hours.

Between September 15 and October 15, 2021 included, a transition period is provided for by the law: when the employee can justify that she/he obtained a first dose, she/he can continue working if she/he presents the negative result of a virological test.

As from October 16, 2021, employees concerned will have to justify from a complete vaccination scheme or, as the case may be, justify that they are not subject to the vaccination obligation due to proven medical justification or because they recovered after a Covid-19 contamination.

Employers who would not comply with this vaccination obligation may be held liable, at least, for the payment of a 1.500 € fine.

What happens in case employees refuse to get vaccinated?

The applicable law provides that if an employee refuses to be vaccinated, then she/he cannot work anymore.

With the agreement of her/his employer, the employee can decide to take days off or paid leave. Otherwise, the employer will have to suspend the employee’s employment contract until she/he complies with the vaccination obligation.

Employers should be careful and ensure, before taking any action regarding vaccination that they apply the right provisions. Indeed, imposing vaccination in a situation where it is not required could lead to criminal proceedings.