How companies should manage the health pass - LE MONDE DU CHIFFRE: News from audit and accounting professionals

In place since June 1, 2021 and then gradually extended during the summer, the health pass is currently presented as the main solution to stem the Covid-19 epidemic. Detailed instructions for employers by Ludovic Courcoux, HR Consultant, and Isabelle Poite, Head of the Social Department at Walter France.

What are the difficulties encountered by the employers affected by this measure? What is the limit of medical secrecy and what is the employer's leeway? To what risks are the employers concerned now exposed?

What are the places and sectors targeted by the obligation to present the health pass?

The access of people to certain places, establishments, services or events is conditioned by the presentation of a health pass and without condition of staff (except for professional seminars) for:

A real tool of the Ministry of Labor since the start of the health crisis, many details are provided by a dedicated and frequently supplemented question-and-answer site: Sanitary pass: all the answers to your questions | government.fr.

Essential point: only the places of reception of the public are concerned. Offices or workplaces not open to the public are therefore not affected by this obligation, as are places accessible to the public outside public opening hours.

Which employees are concerned by the obligation of the health pass?

Are concerned by the obligation of the health pass all the employees (adults and minors) who intervene in the places mentioned above and this, without condition of workforce.

Staff carrying out deliveries or emergency work and the employee's external adviser are not subject to the obligation of the health pass. On the other hand, volunteers, external service providers and temporary workers are concerned. It is the user company covered by the obligation that will have to verify the possession of the health pass.

How can the employer control the health pass of the public?

The establishments concerned by the health pass must specifically authorize the persons and services authorized to check the supporting documents. A register must detail the authorized persons and services, the date of their authorization, as well as the days and times of the checks carried out. The implementation of these formalities must involve the CSE (economic and social committee).

It is necessary to comply with the provisions of the GDPR and the CNIL when reporting information, namely the prohibition on transmitting lists of names of people.

In practice, the control must be done by using the “TousAntiCovid Verif” application. However, the employer cannot require the persons in charge of the control to use their personal telephone to do so, unless there is an agreement between the two parties.

Comment les entreprises doivent gérer le passe sanitaire - LE MONDE DU CHIFFRE : L'actualité des professionnels de l'audit et de l'expertise comptable

A document must therefore be established to formalize both the employee's agreement to the use of his mobile phone, but also to trace the authorization of the employees concerned by the responsibility for the control.

Please note: only the establishments concerned can check whether or not there is a health pass. Failing this, there is a penalty of up to one year's imprisonment and a fine of 45,000 euros.

How can the employer control the health passes of his employees?

The employer concerned by the obligation to check the health pass of his employees can use the authorized forms (“TousAntiCovid Verif” application). The employer cannot keep the QR code but only the result of the verification operation (validity or not of the pass). Indeed, the information collected is personal data subject to the GDPR.

In companies with more than fifty employees, the CSE must be consulted without delay and be associated with the control method. The opinion of the CSE can intervene after the employer has implemented these measures, at the latest one month from the communication of the information by the employer. Concerning companies with less than fifty employees, it is still recommended to have a useful discussion with staff representatives on these subjects surrounding the health and safety of employees but also their organization of work.

It should be noted that the administration specifies that with the exception of transport, employees holding a health pass can dispense with wearing a mask in the places concerned by the obligation since August 30, 2021, unless the prefect or the employer provides otherwise. However, it seems premature in most cases to remove this obligation from the various health protocols of companies or associations, as part of the employer's health and safety obligation.

In addition, in cases where the employer is not the establishment manager and does not control the employee himself:

In this sense, employers must communicate all the more on the impacts of health restrictions in their organization of work, in particular by specifying the information obligations of employees who may be required to control or be controlled during their working hours.

Let's not forget that sectors not subject to the health pass are indirectly concerned. In particular, the question arises of the management of major travel by employees as part of their mission, assuming a restaurant, hotel, train, plane that requires the possession of a health pass.

Internal and external communication on the obligations and methods of monitoring this health pass, as well as the possibility for employees to be vaccinated during working time, will therefore be an essential indicator for the company to be able to prove its various actions. in case of dispute.

What penalties for lack of control?

Merchants and professionals who do not control the pass risk a fine of 1,000 euros, a formal notice and possible temporary closure of the establishment, or even a fine of 9,000 euros and one year's imprisonment. imprisonment for a violation reported three times within a period of thirty days.

It is also imperative to perfectly identify the application or not of the obligation to check the health pass to the activity of the company. It is absolutely forbidden for an employer not concerned by this obligation to impose the health pass on his employees when the activity of his company does not justify it.

What are the consequences for employees refusing to submit to the health pass?

Employees who refuse to be vaccinated must carry out a PCR or antigen test every 72 hours.

Self-tests carried out under the supervision of a healthcare professional are also permitted and are valid for 72 hours. As PCR and antigen tests are no longer reimbursed, if the employer plans to cover these tests, will this be treated as a benefit in kind subject to social charges, given the possibility for the employee to benefit from the results of this test in a personal context? Clarification from the administration is awaited.

The employee who refuses to have and present a health pass can agree with the employer to take days off or rest while waiting for the end of the health crisis. If the employee refuses all these alternatives, it is expected that the employer will notify him of the suspension of his contract without remuneration.

After three days, the employer summons the employee to an interview in order to examine with him the means of regularizing the situation by considering the possibilities of a new temporary assignment to another position without contact with the public. If no other assignment is possible, the employment contract remains suspended.

As a reminder, the dismissal procedure for the reason of prolonged absence of a health pass has been removed from the law. The possible solution of an employee's exit through the dismissal procedure for real and serious cause linked to a prolonged absence disrupting the proper functioning of the company seems risky. Indeed, the justification of a real disorganization of the company will very probably be challenged by the judges in view of the temporary nature of the obligation of the health pass.

Update on compulsory vaccination

Since September 15, 2021, employees working in the health sector, regardless of their functions, must be vaccinated against Covid-19. Since October 15, the staff concerned who do not produce the necessary supporting documents can no longer continue to exercise their activity and risk the same sanction as employees subject to the obligation to present the health pass: suspension of the employment contract and termination of compensation.

Employers and HR are required to manage these complex and unprecedented situations, also in sectors not subject to the health pass.

It is undeniable that this additional workload for human resources departments is complex and heavy in its implementation. The impact of the management of this obligation on the social climate, which could become a subject of tension or additional opposition within the work organization, must also be taken into account.

Questions still unanswered in connection with these new obligations remain: do the impacts of these measures lead to an update of the single risk assessment document? How far does the reclassification obligation extend in the event of the absence of a health pass or vaccination of the employees concerned? Will the administration services be lenient on potential discrepancies related to medical secrecy and the GDPR, which are always difficult to understand in a particular health context? The future will tell us more.