In France, a health pass[1] must be presented in certain places or events where there is a high risk of COVID-19 being contracted (e.g. concert halls/cinemas, sports events, bars and restaurants, long-distance transport, shopping centres over 20,000 m², etc.) as listed by the Law no. 2021-1040 dated 5 August 2021.

Since 30 August 2021, employees working within these places are also required to present a health pass in order to continue their job role, unless this takes place in a space that is not accessible to the public or takes place outside of public opening hours.

If the employee does not have a health pass or refuses to present it, they will no longer be able to work. The employee may take rest days or paid leave in agreement with the employer. However, if an agreement is not met, the employer is required to suspend the employee’s employment contract without pay until the employee is able to present a health pass. The Law states that, after the third day of the suspension of the contract, the employer must conduct an interview with the employee during which they will discuss ways to rectify the situation. For example, this could include a temporary assignment to a position not subject to the above-mentioned obligations if the needs and organisation of the company allow it or teleworking if the employee is eligible. If they fail to come to an agreement, the Law states that “ordinary law procedures” concerning employment contracts may be applied. The text no longer states that the employee may be dismissed if they fail to present a health pass for an extended period.

However, the health pass is required until at least the end of the state of health emergency on 15 November 2021. This means that, in practice, if the employee’s employment contract is suspended until that date, this may cause a disruption within the business of the company and so the replacement of the employee is justified. Dismissals would thus probably be notified even if there is no specific legal basis to support such a decision. Therefore, French Courts are likely to face unfair dismissal claims over the course of the next few months.

 

[1] The “health pass” or “green pass” consists of one of the following three proofs:

• Vaccination, provided that a complete vaccination schedule is available;
• Negative result of a virological test less than 72 hours old (PCR screening test, antigenic test or self-test performed under the supervision of a health professional);
• A positive PCR or antigenic test result demonstrating recovery of COVID-19, at least 11 days old and less than 6 months old.