Lyon: the appeal of a suspended nurse was rejected

She was one of the first to attack the law of August 5, 2021 establishing the vaccination obligation for nursing staff.

From August 27, without waiting to be faced with a suspension, a nurse from the Lyon Mental Health Establishment (III) appealed to the industrial tribunal to ask for her salary to be maintained.

"This vaccine obligation is contrary to treaties, regulations and charters on fundamental rights", she indicated in her writings.

Unvaccinated, this nurse was therefore suspended on the deadline of September 15, like several thousand other caregivers in France.

"European law prohibits any discrimination based on opinions, in particular medical treatment, and it prohibits inhuman or degrading treatment, such as loss of salary", continues the suspended nurse.

A similar decision at European level

At the end of last week, the industrial tribunal ended up rejecting this request for interim relief (Editor's note: fast procedure, when the request is urgent), referring the caregiver to better provide for a more in-depth procedure.

A decision whose motivations can already be dated: "The interference with individual freedoms of the vaccination obligation is lawful in that it pursues a legitimate and compelling aim of protecting the rights of others, and does not create discrimination devoid of objective and reasonable justification.

"

The European Court of Human Rights had also ruled in this direction last April, during the Vavricka case, between a mother and the State, in the Czech Republic.

She did not want her children vaccinated against 9 common diseases.

"And the law of August 5, which bases the suspension of the contract and consequently the associated remuneration, on a distinction between protected and unprotected caregivers, here again aims above all to protect the health of others and in particular of people. elderly or vulnerable, in the context of the Covid-19 pandemic, recalls Me Philippe Lecat, the Parisian cabinet defending health establishments and the general mutual health and social action national education (MGEN). This application is therefore not inconsistent with European law and, consequently, its application does not create manifestly unlawful disturbances. We can therefore accept restrictions on fundamental freedoms in the face of a major health problem.The decision in Lyon could put an end to the numerous appeals initiated by caregivers who still refuse to be vaccinated.

Stops of convenience

Until then, the main court decisions concerned healthcare workers still on sick leave on September 15 and who had been suspended for not having transmitted their vaccination certificate, when they had not yet returned to work.

They had won their case and were able to receive their remuneration.

Because the law of August 5 and the circular which results from it do not provide for provisions in the event of sick leave and "do not apply to the employee who, placed on sick leave on the date of their entry into force , is not in a position to carry on its activity ”.

For justice it was necessary to wait for their return from sick leave to force them to be vaccinated.

"But we know very well that many stops are stops of convenience, carried out by staff who did not want to be vaccinated", testified a few weeks ago a clinic manager who was facing a wave of sick staff, in depression or burned out as the deadline approached.