COVID-19 vaccination and testing in France - employment law perspective

  1. Vaccination
    1. 1. What options does the employer have to encourage employees to be vaccinated? Can the employer provide a financial incentive to employees? 
    2. 2. Is the employer obliged to offer vaccines (or can it voluntarily offer vaccines) to employees? Is the employer obliged to support (or can it voluntarily support) third parties or governmental institutions providing vaccines to employees?
    3. 3. Can the employer verify which of its employees have been vaccinated? If yes, can the employer make record of these vaccinated employees?
    4. 4. Does an employee have a duty to inform the employer whether or not he or she has been vaccinated?
    5. 5. Can the employer oblige employees to be vaccinated as a condition of employment? If yes, specify under what conditions. Include in your answer to what extent the nature of an employee's work activities or position is pertinent (e.g. does it matter whether the employee can work remotely?).
    6. 6. Can employees refuse to be vaccinated? If so, is the employee obliged to give the reasons for refusing? 
    7. 7. Can the employer refuse to admit employees into the workplace if they are not vaccinated (i.e. is it possible to make two categories of employees)?
    8. 8. Can the employer instruct non-vaccinated employees to perform different duties? If so, under which circumstances?
    9. 9. How should international business travel be managed? Include any local requirements where proof of vaccination is necessary to enter your jurisdiction.
    10. 10. Which points of discussion or developments are expected in the future? Include any relevant new legislation that will or could be introduced. 
  2. Testing
    1. 1. Can an employer oblige an employee to take a COVID-19 test? If so, is the employer required to provide workplace COVID-19 tests? If not required, can it opt to do so voluntarily? 
    2. 2. If the answers to the previous questions are yes, how often is the employee obliged to take a test? Can tests be performed by the employer's medical personnel or must they be done by a professional third party?
    3. 3. Is an employee obliged to share the outcome of a positive COVID-19 test with the employer?
    4. 4. Can an employee refuse to be tested? Should testing become a mandatory condition of employment?
    5. 5. Can an employer assign different duties to employees who are unable to present a negative COVID-19 test before entering the workplace?

Vaccination

1. What options does the employer have to encourage employees to be vaccinated? Can the employer provide a financial incentive to employees? 

Currently there is no obligation in France for employees to be vaccinated against COVID-19. 

Consequently, the employer cannot compel employees to be vaccinated and cannot sanction employees who do not wish to be vaccinated and/or treat them in a different way without taking a risk of discriminating them on the grounds of their health condition. 

For the time being, the employer is only able to encourage its employees to get vaccinated. Such encouragement may include, for example, presenting the vaccine and its benefits or allowing employees to be vaccinated during working hours and accept to consider the time spent doing so as working time. 

Employers are also able to set up vaccination sessions through Labour Doctors. 

However, an employer cannot provide a financial incentive to employees since it could be seen as a way of forcing employees to be vaccinated and could also lead to a difference in treatment/discrimination between employees who agree to be vaccinated and those who refuse.

2. Is the employer obliged to offer vaccines (or can it voluntarily offer vaccines) to employees? Is the employer obliged to support (or can it voluntarily support) third parties or governmental institutions providing vaccines to employees?

The employer is not obliged to offer vaccines to its employees, but he is able to organize vaccination sessions through Labour Doctors. For the time being, only people aged 50-64 with co-morbidities [as well as people over 75 and health staff] can be vaccinated.

The employer is not obliged to support third parties or governmental institutions providing vaccines to employees, but he may do it voluntarily. 

3. Can the employer verify which of its employees have been vaccinated? If yes, can the employer make record of these vaccinated employees?

An employer cannot ask its employees whether or not they have been vaccinated or demand a proof of vaccination as the vaccination status of a person is a personal and medical data. 

In addition, even if the employer knows which employees have been vaccinated or not, this information cannot be registered or taken into account in the organization of work. 

Indeed, in doing so, the employer would make a distinction between vaccinated and non-vaccinated employees which creates a risk of prohibited discrimination and unequal treatment between employees based on health condition. 

Moreover, it should be pointed out that the implementation of such a process would allow the employer to be in possession of employees' personal and medical data which is not allowed (article 9 of the GDPR). 

4. Does an employee have a duty to inform the employer whether or not he or she has been vaccinated?

Taking into account the fact that, at this stage, there is no obligation for employees to be vaccinated, an employee is not obliged to inform his / her employer whether or not he / she has been vaccinated. 

5. Can the employer oblige employees to be vaccinated as a condition of employment? If yes, specify under what conditions. Include in your answer to what extent the nature of an employee's work activities or position is pertinent (e.g. does it matter whether the employee can work remotely?).

As mentioned above, currently there is no obligation in France for employees to be vaccinated against COVID-19, being specified that such obligation could only be imposed by the law.  Consequently, the employer cannot compel employees to be vaccinated and cannot raise the vaccination as a condition of employment.

It should be noted that the provisions of the Labour Code and the Public Health Code stipulate that employees working in certain sectors of activity (for example medical sector) are required to have certain vaccinations. Therefore, the employees concerned will only be employed and allowed to work if they have received the compulsory vaccines. However, the vaccine for COVID-19 is not, for the time being, included in the list of vaccines concerned.

6. Can employees refuse to be vaccinated? If so, is the employee obliged to give the reasons for refusing? 

Taking into account the fact that, at this stage, there is no obligation for employees to be vaccinated, even for employees working in certain sectors of activity, they can therefore refuse to be vaccinated and do not have the obligation to share the reasons for refusal. 

7. Can the employer refuse to admit employees into the workplace if they are not vaccinated (i.e. is it possible to make two categories of employees)?

The employer cannot take into account the fact that the employees are vaccinated or not in the organization of work and cannot forbid employees who have not been vaccinated from entering the workplace.  

Indeed, in doing so, the employer would make a distinction between vaccinated and non-vaccinated employees which creates a risk of prohibited discrimination and unequal treatment between employees based on health condition. 

8. Can the employer instruct non-vaccinated employees to perform different duties? If so, under which circumstances?

The employer cannot instruct employees who are not vaccinated to perform different duties because it would lead to make a distinction between vaccinated and non-vaccinated employees  which creates a risk of prohibited discrimination and unequal treatment between employees based on health condition. 

9. How should international business travel be managed? Include any local requirements where proof of vaccination is necessary to enter your jurisdiction.

No proof of vaccination is necessary to enter in France. 

For the moment, travellers who would like to enter in France must present a negative COVID test result dated less than 72 hours before departure as well as a sworn declaration stating that: 

  • The traveller does not present any symptoms of COVID-19,
  • Is not aware of having been in contact with a confirmed case of COVID-19 in the fourteen days prior to travel,
  • That he /she accepts that a test can be carried out on his / her arrival on the national territory.

10. Which points of discussion or developments are expected in the future? Include any relevant new legislation that will or could be introduced. 

A legal framework will possibly be created to oblige employees working in certain sectors to be vaccinated.

Moreover, the question that may arise in the future concerns the situation of employees whose duties require them to travel abroad notably if an international vaccination passport is implemented. 

Testing

1. Can an employer oblige an employee to take a COVID-19 test? If so, is the employer required to provide workplace COVID-19 tests? If not required, can it opt to do so voluntarily? 

The employer can provide for Covid-19 test at work under strict limits and conditions. Indeed, the national protocol to ensure the health and safety of employees in companies in the context of the COVID-19 mentions the possibility for companies to offer COVID-19 screening actions to employees. However, a ministerial ruling dated 16th November 2020 regulates the realization of such campaigns and notably specifies that these testing campaigns are authorized "on an exceptional basis and in the interest of health protection", "in case of suspicion or cluster or particularly active circulation of the virus”.

These tests must be carried out on a voluntary basis. As a result, the employer cannot oblige its employees to be tested and cannot sanction employees who do not wish to be tested and/or treat them in a different way without taking a risk of discriminating them on the grounds of their health condition. 

2. If the answers to the previous questions are yes, how often is the employee obliged to take a test? Can tests be performed by the employer's medical personnel or must they be done by a professional third party?

As mentioned above, testing of employees may be authorised under strict conditions. In this regard, the ministerial ruling indicates that the tests must be "performed by a doctor, nurse or pharmacist" or, under certain conditions, other medical or paramedical professionals.

3. Is an employee obliged to share the outcome of a positive COVID-19 test with the employer?

The employee has no legal obligation to share the outcome of a positive COVID-19 test with the employer. However, if positive, the employee must isolate himself / herself without delay and follow the applicable health and sanitary recommendations. 

4. Can an employee refuse to be tested? Should testing become a mandatory condition of employment?

Currently there is no obligation for employees to be tested. As mentioned above, COVID-19 tests are carried out on a voluntary basis which means that an employee can refuse to be tested. Therefore, being tested cannot constitute a mandatory condition of employment. 

5. Can an employer assign different duties to employees who are unable to present a negative COVID-19 test before entering the workplace?

The employer cannot instruct employees who are not able to show a negative COVID-19 test to perform different duties because it would lead to making a distinction between employees who accept to be tested and the others. This creates a risk of prohibited discrimination and unequal treatment between employees based on health condition.