It is this Thursday that the Constitutional Council renders its decision for the law on the extension of the health pass, the compulsory vaccination of caregivers against Covid-19 and the ten-day isolation of people who test positive.
If the government shows confidence, sticking points could intervene during this decisive day.
Restaurant owners check the validity of the health pass
Could the highly sensitive subject make the Sages tick?
For the lecturer in public law at the University of Paris II Panthéon Assas, and constitutional expert, Benjamin Morel, “the sanitary pass and the controls lead, of course, to a restriction of freedoms and a limitation of coming and going, as well as an alteration of the principle of equality between citizens, but the Constitutional Council can accept its limitations by considering that the containment of the epidemic is in the general interest ”.
Read also Health pass: the executive is confident before the decision of the Constitutional Council
Regarding the terraces, “it may not appear disproportionate to impose a control on them,” he continues.
Unlike hypermarkets, to which access is necessary for food, and therefore for living, and despite the damage caused to restaurateurs and customers, such a need does not appear to be vital with regard to terraces.
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The dismissal of employees without health pass
When it's blurry, it's because there is a wolf, the saying goes. This is what the Constitutional Council could blame for this part of the text which provides for the suspension of the employment contract and of the remuneration for employees obliged to be vaccinated, such as medical staff, or to present a health pass, such as the servers of restaurants, and who wouldn't. In the end, these employees would risk, in fact, dismissal without this being clearly stated in the text.
The wise might consider the dismissal excessive.
Inaccuracies recognized by the Minister of Labor, Élisabeth Borne, who referred the responsibility to the Senate and to its majority The Republicans who modified the government text.
"We do not want to bear the legal risk of this dismissal, warns Thierry Grégoire of Umih, the employers' union of restaurants.
It is not for us to pay the severance pay.
It is the responsibility of the state.
"
The case of shopping centers
The text provides that the health pass may be imposed by decision of the prefects in the event of an outbreak of the epidemic, and beyond a threshold set by the Prime Minister.
"The application of a pass can have repercussions on their freedom to work for operators", notes Jean-Philippe Derosier, professor of public law at the University of Lille.
In short: the control of the health pass can burden businesses by hampering freedom of movement.
On the other hand, according to this constitutional expert, "the question of setting a threshold for gaining access to shopping centers does not appear to fall within the competence of the legislator but of the executive".
Show white paw to be treated in the hospital
If the health bill excludes it for emergencies, other patients must have been tested or vaccinated to access their appointment in a health facility. Could the Sages stand in the way? The measure deemed "ambiguous" triggered a bronca among many caregivers, asking the government to better define what it means by "emergency". Its establishment is worrying until the National Council of the Order of Physicians which cracked a press release on Monday.
"The Order is deeply concerned about the conditions for implementing such a provision, which must not deprive patients of care, even though the deleterious consequences of the health crisis in terms of access to care and follow-up of patients (…) are widely documented ”.
The medical profession also fears tensions at the entrance of establishments with visitors and relatives of patients, also subject to the health pass.
Mandatory isolation for ten days
As it stands, the health bill requires people positive for Covid-19 to isolate themselves in the place of their choice for ten days. This maximum isolation time can be reduced in the meantime by a negative test. The conditions are strict: ban on going out, except between 10 am and 12 noon, and in case of emergency or for travel "strictly essential and cannot be carried out during this time slot". An appeal will be possible before the judge of freedoms and detention. And this is where the Constitutional Council could see a legal difficulty according to Master Pierrick Gardien, lawyer in public law at the bar of Lyon (Rhône).
“In a decision of May 2020, its members recalled that isolation in a place of accommodation could not be extended for more than 12 hours per day without the authorization of the judicial judge, otherwise the measure constitutes deprivation of liberty. However, in this article of the bill, referral to the judge is only optional. According to the lawyer, the provision of compulsory isolation could thus be subject to partial censorship or a reservation of interpretation.
