Can unvaccinated caregivers take on another job when their employment contract is suspended?

As of Wednesday, September 15, health personnel, the medico-social sector or even firefighters will have to be able to justify at least one dose of vaccine against Covid-19, under penalty of seeing their contract suspended.

Professionals who have received only one dose will also have to present a negative test every 72 hours.

They will then have until October 15 to complete their vaccination schedule.

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Will caregivers without contraindications who still have not received their first dose then be able to find another job during the suspension of their employment contract, in particular to ensure income while they have a complete vaccination schedule? ? This is the question that employees and employers are asking themselves on the eve of the entry into force of the vaccination obligation. As a reminder, more than 88% of healthcare professionals in nursing homes and hospitals and nearly 94% of liberal staff had received a dose on September 7, according to Public Health France.

"

When the employment contract is suspended, two obligations are lifted: on the one hand the company no longer pays any remuneration and on the other hand the employee no longer performs any work

" explains to

Figaro

Maître Alexandra Sabbe- Ferri, lawyer in labor law.

These two obligations lifted, “

the contract still exists

” but the employee is exempted from “

being at the disposal of the employer

”.

It is then theoretically possible for him to exercise another job for the duration of the suspension of the employment contract.

Duty of loyalty and exclusivity clause

Maître Sabbe-Ferri recalls that this mechanism is known since it already applies during a "

sabbatical or business creation

". In the case of the suspension of the employment contract for non-vaccination, two elements may however constrain the exercise of a second job.

The caregiver must first respect the obligation of loyalty, intrinsic to the employment contract, even during its suspension. This obligation prohibits unfair competition and therefore prevents any employee "

from exercising another position which would place him in a situation of unfair competition vis-à-vis his first employer,

" says Me Sabbe-Ferri. Unfair competition could, for example, be characterized by “

the communication of confidential information to one's new employer

”. The lawyer explains, however, that the outlines of this obligation are not strictly defined and that it may be necessary to notify his first employer of obtaining the second job to avoid litigation.

In addition, the contract may contain an exclusivity clause which prohibits any other taking up a position, regardless of its nature.

In this case, "

each contract should be studied on a case-by-case basis

" explains Me Alexandra Sabbe-Ferri.

The employer can, however, decide to lift this clause after discussion with the employee.

Practical constraints

Other, more concrete constraints could also prevent caregivers from finding another job.

Without vaccination, it is first of all impossible for them to consider any temporary contract in their training sector, the medico-social.

Jobs in establishments open to the public are also theoretically closed to them, unless they wish to carry out anti-Covid tests every 72 hours.

In addition, caregivers who refuse vaccination for too long could face penalties in addition to suspension. The law specifies, for professions to order, that an employer who finds that a health professional can no longer exercise his activity for more than 30 days because of the vaccination obligation, must inform the National Council of Order to which the caregiver reports. The Order may then initiate ordinal disciplinary proceedings. This procedure "

could then lead to a dismissal procedure but its implementation will be complicated and it is difficult to predict how the orders will rule

", nuance however Master Sabbe-Ferri.

For professions without order, the law does not provide for a disciplinary procedure in the event of long-term suspension.

Theoretically, a caregiver "

could thus see his contract suspended ad vitam aeternam

,

without being made redundant

" and this, until he is vaccinated, explains Me Alexandra Sabbe-Ferri.

Read also Can antivaxes invoke the Kouchner law against the vaccine obligation?

Exercising another job in parallel with the suspension, hoping to return to your main post in the long term, therefore represents above all a solution to ensure income while waiting for the completion of your vaccination schedule.

For the most experienced refractories, professional retraining seems necessary.