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

Employers can inform employees of the benefits of a COVID-19 vaccination and encourage it among staff by allowing inoculations during working hours and by treating time spent for the vaccination as working time.

However, employers cannot provide a financial incentive to employees for agreeing to be vaccinated nor treat employees who refuse to be vaccinated differently. Employers who do so would be liable for discrimination based on a medical condition.

With the ministerial decision of 30 December 2020, the government has initiated a vaccination policy. Since August 2021, the Monegasque government has extended free vaccinations to all employees in the Principality without any minimum age requirement.

Employers cannot make vaccinations mandatory, and do not have an obligation to offer vaccines or support to any institutions or third parties regarding vaccinations. 

However, employers can voluntarily support the vaccination process (see above). For now, vaccinations cannot take place in the workplace. The Monegasque government manages vaccinations and has limited the locations where vaccinations can take place. These locations include the national vaccination center or private homes for people who have trouble moving.

In principle, employers cannot make a list of vaccinated employees nor require proof of vaccination. Vaccination status is health-related data, which is sensitive personal information that is confidential by nature and cannot be collected by the employer. 

Nevertheless, with the adoption – in the extraordinary session of 14 September 2021 – of law n°1.509 on mandatory vaccinations, legal provisions will change for some employers and employees as of 30 October 2021 at the latest after publication of the law in the Monaco official journal, which happened the 24^th September 2021).

Under article 1 of law n°1.509, employers of the following categories of employees will be required to verify if such employees have been vaccinated:

1. any staff member of (a) a care or health facility; (b) an establishment, service or organisation whose specific mission is to receive, care for or accommodate persons who are 60 years of age or older or dependent persons; or (c) an establishment, service or organisation with the specific mission of receiving, supervising or housing handicapped persons.
2. any person who, without being a member of the staff of an establishment, service or organisation referred to in paragraph (1) above is engaged in an activity therein, including as a volunteer, pupil or student, where the person is in direct contact with persons whom he/she receives, supervises or accommodates, with the exception of those who carry out activities without being in direct contact with persons whom he/she welcomes, supervises or he/she receives, supervises or accommodates.
3. any person who practices any of the following health professions: (a) physician; (b) dental surgeon; (c) midwife; d) pharmacist or pharmacy assistant; (e) medical assistant; or (f) osteopath.
4. any non-healthcare personnel working with one of the professionals mentioned in point 3 when they are in direct contact with the patients of these professionals.
5. any member of the fire department.
6. any person providing home help to elderly people aged 60 or over, dependent people or disabled people.
7. any person providing medical transport services.

According to article 3 of law n°1.509, employees will have to inform their employers within seven days of the employers' requests: i) that he/she has completed the vaccination scheme; or ii) given him/her a certificate of recovery from COVID-19 infection or a certificate of confirmation of contraindication. In this case, on the expiry date of this certificate, the employee will have to present a complete vaccination scheme to employers. Employers will be authorised to keep the documents given by employees, testifying that they have proceeded according to the verifications prescribed by law. To that regard, employers will have to ensure that these documents are kept securely and are properly destroyed at the end of the application of the law.

Vaccination status is a sensitive personal data according to the data protection authority and therefore cannot be revealed to the employer. 

However, when law n°1.509 comes into force, employees working in specific sectors of activity or occupying specific professions (see above) will have the duty to justify their full vaccination status to their employers.

However, if employees refuse to share this information to employers directly, they may send the document attesting i) the completion of the vaccination schedule; ii) to recovery based on a certificate of recovery from COVID-19 infection; iii) to recovery based on a certificate of confirmation of contraindication sent to the Office of Labour Medicine (OMT), which will confirm to employers without delay that the vaccination obligation has been met.

In principle, employers cannot make the vaccination as a condition of employment, or else it would face civil liability for discrimination based on a medical condition. 

Nevertheless, with the adoption of law n°1.509 on mandatory vaccination, employees working in specific sectors of activity or occupying specific professions (see above) will be under a legal duty to be vaccinated as a condition of their employment.

Furthermore, according to article 7, 2 of law n°1.509, any employer having recruited for a job that falls within the scope of the vaccination requirement a person not having prior to his hiring i) achieved the completion of the vaccination schedule; ii) obtained a certificate of recovery from COVID-19 infection; or iii) obtained a certificate of confirmation of contraindication, is subject to a fine.

Employees in general can refuse to vaccinate without giving any justification since there is no current obligation in Monaco to be vaccinated against COVID-19. Employers cannot interfere in an employee's decision to be vaccinated.

Nonetheless, with the adoption of law n°1.509, employees working in specific sectors of activity or occupying specific professions in which the employment requires to be fully vaccinated or to be rightfully exempted to (see above) or subject to mandatory vaccination, may still refuse to be vaccinated, which will trigger a prohibition to work, and eventually their employment contract will be legally suspended.

The employer’s duty to suspend the employment contract of any employee who does not respect the vaccination obligation is provided for under penalty of a fine (article 7, 2. of law 1.509).

The employer cannot refuse to admit employees into the workplace based on whether they are vaccinated, unless their employment is subject to the vaccination obligation when law n°1.509 comes into force.

In principle, the employer cannot distinguish between vaccinated and non-vaccinated employees, allocating different rights to each, since this would be a form of discrimination.

Nevertheless, as seen above, when law n°1.509 comes into force and when the employment is subject to the vaccination obligation, the employer must refuse unvaccinated employees access to the workplace.

For an employment not within the scope of the mandatory vaccination, the employer can only:

• propose that his employees to work from home according to the specific legal conditions of remote work (not more than two-thirds of his working time and subject to the existence of a teleworking agreement);
• require an employee to remain at home or ask the occupational physician to assign sick leave for an employee who has been exposed to an infected person or is symptomatic.

In any case, no legal provisions allow employers to lower the safety measures, such as wearing face masks or remaining in quarantine no matter the employee’s vaccination status.

In Monaco, no legal provisions allow landlords to refuse to admit employees into buildings. In principle, landlords would not be able to do so as they are under a duty to preserve the tenant's “peaceful enjoyment” of the premises, which would include unrestricted access to the premises.

In any case, the landlord would not be able to ask employees to present their health pass since landlords are not legally entitled to do so.

Requesting vaccination status by means of COVID-19 pass is regulated by the ministerial decision of 1 July 2021, updated 19 August 2021, and requires the presentation of the pass to access some establishments, places, and events.

Therefore, some employers could make a distinction between third parties, such as restaurants that are under a duty to require COVID-19 passes, but are not authorised to require it from employees.

In Monaco, either the Monaco Safe Pass or the EU DCC can be used.

Following article 7 of the ministerial decision of 1 July 2021, the EU DCC is requested to access an i) establishment, location, or event with more than 1000 visitors such as conference rooms, an entertainment room, dance and drama education, where spectators are present or there are gaming halls or automatic gaming machines, indoor sports facilities; or ii) establishment whose activity is a discotheque, dance, musical animation or karaoke annexed to a bar or restaurant activity.

Following article 8 of the same decision, the EU DCC is requested to access an establishment that has on-site food, beverage, bar, snack bar, breakfast service, ice cream parlour or tea or coffee shop, including for a private event.

However, when on a fully open terrace, the EU DCC is not requested if one can prove that he/she i) is an Monegasque national; ii) has residence in Monaco; iii) is working in Monaco; iv) is a student or trainee in Monaco; or v) is staying in a hotel in the Principality.

When a COVID-19 pass i) is not requested when it should be or ii) is requested when it should not be, the penalty is:

• For the first time: a fine between EUR 75 and EUR 200 for an individual and a fine of up to EUR 6000 for a legal person; 
• For the second time: a fine between EUR 200 and EUR 600 for an individual and a fine of up to EUR 6000 for a legal person;
• For the third time: a fine between EUR 1000 and EUR 2250 for an individual and a fine of up to EUR 11,250 for a legal person.

If the external event take a place in Monaco, following article 8 of ministerial decision of 1 July 2021, the COVID-19 pass is requested for visitors to access an establishment that has on-site food, beverage, bar, snack bar, breakfast service, ice cream parlour or tea or coffee shop, including for a private event.

Therefore, the external party organising the external event in Monaco can request vaccination status.

Nevertheless, if the event is organised on a fully open terrace, the external party is not authorised to request vaccination status.

In order to check the latest update regarding the access to Monaco or what to do in Monaco, please check: https://covid19.mc/voyage/jarrive-de-letranger/#468.

1. Access to Monaco

Any person coming from a country classified in a green zone (characterised by a low circulation of the virus and listed by Monaco) is requested to present his COVID-19 pass (negative results or vaccination certificate or a certificate of recovery from COVID-19 infection).

However, the COVID-19 pass is not requested from persons coming from the green zone when:

1. they usually reside in the French departments of Alpes Maritimes and Var or in the province of Imperia;
2. they are cross-border workers, pupils and students;
3. they are professionals from companies established abroad who come to Monaco to perform a service whose urgency is incompatible with COVID-19 testing;
4. they are road transport professionals coming to Monaco in the exercise of their activity.

If someone coming from a country classified in the orange zone (characterised by an active circulation of the virus in controlled proportion) cannot present a vaccination certificate or a certificate of recovery from COVID-19 infection, it is requested:

1. to justify, through the presentation of any relevant document, that the trip is based on a compelling personal or family reason, an emergency health reason or a professional reason that cannot be postponed;
2. to present proof of a negative result of COVID-19 test (PCR or antigene) of no more than 72 hours;
3. to isolate for seven days upon arrival on Monegasque territory.

If someone coming from a country classified in the red zone (characterised by a particularly active circulation of the epidemic or the spread of certain variants of COVID-19, with a risk of increased transmissibility or immune escape) cannot present a vaccination certificate or a certificate of recovery from COVID-19 infection, it is requested:

1. to justify, through the presentation of any relevant document, that the trip is based on a compelling personal or family reason, an emergency health reason or a professional reason that cannot be postponed;
2. to present proof of a negative result of COVID-19 test of no more than 72 hours;
3. to consent either:
   1. to isolate during ten days until a COVID-19 test (PCR) establishes that he/she is not or is no more carrying COVID-19 virus;
   2. to submit to two negative COVID-tests (PCR), one performed within 24 hours upon arrival and the other performed five to seven days later.

2. When in Monaco

Any person present in or arriving to the Principality's territory and presenting a risk or signs of potential infection by COVID-19 virus may be quarantined while the virus incubates, and the necessary tests are performed.

Any person present or arriving on the Principality territory who has been diagnosed as infected with the COVID-19 virus may be quarantined until cured.

The measure of quarantine is taken by the Director of Health Action and can be avoided if the individual consents to isolate in a chosen location i) until a negative COVID-19 test (PCR) is done; or ii) at least ten days if no COVID-19 test is taken.

Unless law 1.509 is applicable, employer may not impose vaccination, as seen above.

However, prior the COVID-19 situation, employers could legitimately expect that employees having international business travel duties as part of work and/or an employment contract meet the local requirement of the countries he/she is required to travel to.  

Hence, depending on the duties of the employee, the employer may expect (rather than impose) that employees assigned to international business travel meet the international requirements of the country concerned, as a condition of employment.

This is not strictly speaking a requirement to get vaccinated, but a duty to meet the professional function of travel requirements, which indirectly may include being vaccinated, being able to present a negative test prior to boarding a flight or taking a new test. This may also include entering quarantine upon arrival. If an employee refuses or is not able to prove the ability to meet professional travel requirements, this refusal (depending on the circumstances) may constitute misbehaviour that can be met with a disciplinary procedure. In our opinion, these situations must be evaluated on a case-by-case basis due to the high risk and fine distinction between imposing professional functions and vaccinations.

For business travel, the costs for testing non-vaccinated employees must be borne by the employer.

In Monaco, COVID-19 testing for travel purposes are not free (approximately EUR 100) and must be performed in a private laboratory.

Law n°1.509 – about mandatory vaccination – was adopted on 14 September 2021 in an extraordinary session of the Conseil National (parliament) and will enter into force when published in the Monaco Official journal (see above).

During the extraordinary session, parliament members insisted on the necessary and proportionality scope of mandatory vaccinations and confirmed that it would not be extended to other categories.

For the time being, the scope of the COVID-19 pass is therefore not going to be extended to employees working in places where it is requested from the public (e.g. restaurants).

Following a deliberation by the data protection authority in May 2020, employers cannot organise workplace COVID-19 tests on a voluntary basis, nor oblige employees to take a test. Employers may, however, offer to pay for testing – in authorised testing centers rather than on the workplace – on a voluntary basis, without any possibility to sanction nonparticipation.

The procedure in place provides that employers who detect that an employee is suffering from COVID-19 or there is a high suspicion of infection (i.e. with symptoms of a loss of taste and smell or exposure to an infected individual), may require:

• the occupational doctor to give sick leave to such employees;
• the employee to go home immediately (symptomatic individuals will be invited to contact a GP who will decide what action to take) and to respect government measures limiting contact with others.

N/A

No, results from PCR tests are subject to medical secrecy and therefore the employer cannot:

• oblige the employee to share a copy of the results of a COVID-19 test, regardless of whether it is positive nor negative;
• require employees to share the results of PCR tests. 

However, employers may contact the Office of Labour Medicine (OMT) to obtain confirmation that an employee is able to return to work following an epidemiological investigation. 

An employee may always refuse to be tested. In this case, the employer has the right to demand that the employee (if the person is symptomatic or has been exposed to an infected individual): 

• either receives sick leave from the occupational doctor;
• or remains at home, contacts a GP (who will decide what action to take) and respects government measures limiting contact with others.

If an employee has been sent home for showing symptoms, the employer must inform the Office of Labour Medicine (OMT) of this case. An epidemiologic investigation will then be carried out.  

The employer cannot treat employees differently based on whether or not they have been tested since this would be a form of discrimination.