France: workplace vaccination and homeworking top HR’s agenda

Out-Law News | 11 May 2021 | 8:56 am |

Valerie Blandeau tells HRNews about two key issues for employers in France
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  • Transcript

    If you follow French news, you may know that the country’s Covid-19 vaccination strategy now includes a scheme for vaccinations in the workplace. As ‘The Local’ reports, since 25 February vaccinations have been offered to employees on a free and strictly voluntary basis, administered by occupational health professionals to people aged 50 to 64 who suffer from comorbidities. It is a scheme that is open to all companies. 

    Notwithstanding the controversy surrounding the AstraZeneca vaccine, that’s the one being used for this vaccination phase. The Ministry of Labour in France has taken steps to ensure the proper implementation of the vaccination strategy in companies by issuing a strict protocol. It confirms that the vaccination programme is not mandatory - rather it’s a recommendation - so the consent of the employee is required. Employees who refuse to give consent must not be subject to less favourable treatment as a result. 

    The employers’ responsibilities for vaccinating their employees is the subject of an article by Paris-based lawyer Anne Cardon which appears on the Outlaw website. Individuals have a choice over how they receive the jab, either from the occupational physician or their GP. If it’s the former, then they need to contact the occupational health service and explicitly request to be vaccinated by them rather than by their GP. At all times, however, the company must ensure strict compliance with medical confidentiality. As Anne puts it, employers need to ‘play the game’, making sure the occupational physician has the appropriate material and human resources to administer the vaccine effectively but, at the same time, ensuring confidentiality.

    So that’s the workplace vaccination programme but we can get a flavour of what is happening in the country more generally with the vaccine rollout, homeworking and the impact of Covid on businesses. Valerie Blandeau is a partner based at the Paris office and she joined me by video-link to discuss some of the issues that she is seeing day to day. I started by asking how things are looking in France now we’re more than a year into the pandemic:

    Valerie Blandeau: “Well, after one year of passing through the COVID crisis we may have thought that the major issue would have been termination for economic reasons and a number of companies closing, but interestingly, it's not exactly the case. The major issue that we face at the moment is more about the consequences of the issue we may have as regards homeworking and all the things that we have to think about when we ask people to stay at home and work from home. This is the major question that we have at the moment.”

    Joe Glavina: “What are the models that you're thinking about adopting? In the UK we have what we call ‘hybrid working’ models being considered – a mix of working from home and in the office. Employers in the UK appear to be quite happy to let staff work from home. What's the attitude in France?”

    Valerie Blandeau: “Well, actually in France it was really complicated to begin with because, as always, when we talk about French employment law there's always regulation, negotiation with the unions, and specifically about homeworking. Normally, before implementing that you should have a collective bargaining agreement negotiated and signed with the unions. So obviously, because of the Covid-19 crisis, it was not possible, it was a matter of emergency to implement that kind of thing because we still have the government highly recommending to stay at home so for now it's a bit of a mixed reaction. Some companies are very comfortable with doing that kind of thing, some are not. For some employees it's easy, for some it's not that easy because it's not very easy to have a proper place at home to that kind of thing. In addition to that, we face some various consequences. For example, there's a bunch of case law at the moment which are deciding whether a company should award meal vouchers to employees when they're working from home, which is something like we have never experienced before. So, I would say it's a mix, but I would say, also, that we will have to be prepared for the future because it's very likely that we're not going to be back in the situation we were before.”

    Joe Glavina: “Can I ask you about employees returning to the workplace. Employers have a duty to keep staff safe so there’s the argument in favour of mandatory vaccination. What’s the position in France?”

    Valerie Blandeau: “Well, the position about vaccination has always been very complicated in France because we were not really good at doing it to begin with as a country. It's getting better now but it's still complicated to get access to vaccines and the various vaccines that are offered to people, but as regards specific rules and the right for employee to be vaccinated, or any duties from a company perspective to ask the employee to be vaccinated, it's kind of complicated because, to make a long story short, you cannot really impose on an employee to be vaccinated, not mentioning teachers or caring people, or persons working in the hospital, doctors or that kind of person, but for regular employees it's normally forbidden to impose any vaccination. The only thing that you can impose is the fact that when you have been in contact with a Covid-19 positive case, to stay at home for a certain number of days and stay isolated or to declare the fact that you have been a ‘contact case’ as they call it, but in terms of vaccination, you cannot really impose it.”

    Joe Glavina: “Anne Cardon’s article talks about the workplace vaccination programme and the role of occupational physicians. She says: ‘the most appropriate means of communication is individual information for all employees of the company. Why is that?” 

    Valerie Blandeau: “Because, basically, you cannot share private information between companies and employees. The only person that you can discuss that with is what we call ‘Médecins du travail’ which is the occupational doctor which has access to private data but cannot share that with the employer. So that's why this is the only individual’s matter that we can discuss, but not collecting and not sharing that.”

    Joe Glavina: “How serious is that? If employers mis-manage that, and information is leaked, what are the consequences? 

    Valerie Blandeau: “It could be a breach of private life, actually, which could be considered exactly as the same when you look at private emails or that kind of thing. You cannot have access to any private data in France, although the employee have expressively agreed on that.”

    Joe Glavina: “What would the consequences be in France.      A claim of some kind?”

    Valerie Blandeau: “It could be a claim for constructive dismissal, as you have not, as a company, executed the employment contract from a good perspective. That’s the ultimate decision, but that could be some penalty or damages because of a breach of private data at work.”

    Valerie mentioned the employer’s right to remove restaurant vouchers from its telecommuting employees. That was the result of a recent French court ruling which says teleworkers are not in a situation comparable to that of on-site employees. Valerie has written about that case and its implications in article called ‘Restaurant and telecommuting tickets - the Nanterre Court's response’. We have put a link to that in the transcript of this programme.

    LINKS
    - Link to Valerie Blandeau’s Outlaw article on employers’ right to remove restaurant vouchers for its telecommuting employees