Benoît Sévillia is an associate lawyer, specializing in labor law.
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Michel Houellebecq: "A civilization which legalizes euthanasia loses all rights to respect"
The surprise effect caused by Emmanuel Macron's speech on July 12 on the compulsory vaccination of caregivers and the extension of the compulsory use of the health pass quickly gave way to an effect of astonishment, in particular in the corporate world. This one, for more than eighteen months, had already been put to the test, having had to juggle with the introduction of exceptional measures for the protection of its employees and the organization of work, and here it is confronted with new difficulties. Operating.
At the time of the great departures on vacation, many business leaders and employees probably do not understand the scale of such announcements which, to date, concern several million people working in the sectors of health, catering, transport and more generally in establishments open to the public, such as shops.
The Parliament seems to be preparing to vote without scruple a text which however shatters a fundamental principle of labor law.
Benoît Sevillia
Several major questions arise as a result of orientations which lead to a dangerous restriction of public freedoms: protection of the private life of employees, conservation of health data, the right to dismiss an employee who is recalcitrant to vaccination. The Parliament seems to be preparing to vote without scruple a text which however shatters a fundamental principle of labor law, finding its roots in the right to the absolute protection of the private life of the employee, guaranteed in particular by article 8 of the European Convention on Human Rights according to which
“everyone has the right to respect for his private and family life”.
All employees in the sectors concerned will no longer benefit from this protection, since the refusal to provide themselves with a health pass containing data relating to private life could lead them to be dismissed from their company, with the consent of the legislator. who, in the draft law
"relating to the adaptation of our tools for managing the health crisis"
, even went so far as to provide a reason for dismissal
sui generis
for caregivers refusing to be vaccinated.
Recall that the “employer guide” on Covid-19 published on June 30th specified that the employer could not in any case require his employee to keep him informed of his situation with regard to vaccination.
Benoît Sevillia
However, it was established as a principle of public order by article L.1132-1 of the Labor Code, the prohibition on discriminating, sanctioning or dismissing an employee on account in particular of his political opinions, his religious convictions, or his state of health, which could for each of them constitute the basis for an employee's refusal to be vaccinated, or more simply to justify his vaccination status. Let us recall that the “employer guide” on Covid-19 published on June 30 by the General Directorate of Labor also specified that the employer could not under any circumstances require his employee to keep him informed of his situation in relation to the vaccination.
As well as the General Data Protection Regulation (GDPR) which came into force on May 25, 2018, which has given so much difficulty to companies ordered to create a secure device for the protection of the personal data of their employees, prohibits them from collect their health data, a prerogative which belongs solely to occupational medicine.
Here again, the legislator is making a sudden turnaround by going so far as to financially sanction the employer (up to 45,000 euros) who does not fulfill, in the sectors of activity referred to above, his obligation to control people. present within its premises (including employees).
The public authorities will probably reply that the Council of State has validated this exceptional legal framework consisting in adopting measures restricting freedom as long as they are proportionate to the aim sought.
They will be opposed to the fact that various measures have proved their effectiveness in the fight against this epidemic, which is not yet the case with the vaccine about which some voices in the scientific community are worried that it will not. fails to stem other epidemic waves caused by the famous "variants".
We will also oppose them that the statistics now teach us that only a category of the population (over sixty years of age or suffering from comorbidity) is currently at risk of developing a severe form of Covid-19.
That other sectors of activity do not believe they are immune: many of their employees - especially those who travel for professional reasons - will be affected by the obligation to respect the health pass.
Benoit Sevillia
Thus, if we want to stick to this objective of constitutional value of health protection, on the one hand, and respect for rights and freedoms, in particular the freedom to come and go and respect for life private sector, on the other hand, nothing today justifies measures applying to the entire population. These appear absolutely disproportionate and clearly still violate Article L.1121-1 of the Labor Code according to which "
No one may
impose
restrictions on the rights of persons and on individual and collective freedoms which are not justified by the nature of the task to be accomplished nor proportionate to the aim sought ”.
That other sectors of activity do not believe they are immune: many of their employees - especially those who travel for professional reasons - will be affected by the obligation to respect the health pass.
If the legislator does not backtrack, it is both company directors and employees who will be penalized by the probable appearance of drifts and conflicts of all kinds which will not serve the interests of anyone but on the contrary will aggravate the risks. psychosocial within the company.
