Can your employer force you to get vaccinated?

The forthcoming arrival of the vaccine, following the green light given by the European Medicines Agency, raises several practical questions. If, initially, priority is given to the elderly living in nursing homes and to the nursing staff who supervise them, the vaccine will soon be available for the entire population. Emmanuel Macron has already swept aside the idea of ​​​​compulsory vaccination, indicating at Brut not to believe “compulsory vaccination for this vaccine”. However, questions are beginning to arise about the possibility for some employers to require the vaccine for a return to work in order to avoid the formation of clusters.

No vaccination obligation

Professional meetings are among the privileged places for the transmission of the virus. In this sense, forcing its employees to be vaccinated before being able to return to the office for an employer makes sense. However, it is illegal. “The vaccination obligation is in the domain of the law, it is the legislator who sets the rules”, continues Emmanuel Gayat, lawyer at the Paris bar and specialist in labor law, interviewed by 20 minutes. As long as no legal text imposes vaccination, whether in general or for certain specific trades, no employer can require it of its employees.

The question has already arisen recently with the tests. Last April, Veolia became the first major group to announce that it wanted to conduct a screening campaign among its employees. The group was quickly refused by the authorities. “It is forbidden to carry out general screening campaigns in companies”, reacted Muriel Penicaud, then Minister of Labour. However, the Labor Code requires the employer to take the necessary measures “to ensure the safety and protect the physical and moral health of workers”.

Possible vaccination advertising

If he cannot impose vaccination, or screening, an employer can encourage his employees to be vaccinated. “An employer can advertise as much as he wants as long as he does not ask his employees for vaccination certificates”, specifies Emmanuel Gayat. On the other hand, if he wants to recommend vaccination directly, he can only do so on the proposal of the occupational physician, according to article R 4426-6 of the Labor Code. “These recommendations must be justifiedadds Stéphane Martiano, a lawyer specializing in labor law, also quoted by 20 minutes. This can be for employees particularly exposed to the virus, or in direct contact with fragile people. In an Ehpad, for example.”

The employee cannot legally be sanctioned by his employer in the event of refusal to be vaccinated. On the other hand, he is obliged to inform his company in the event of symptoms or of a positive screening test. If the employer wants to force the employee to be vaccinated by placing him on part-time or forced leave in the event of refusal, he is playing a dangerous game, according to Stéphane Martiano. “It would really be necessary to prove scientifically that the person is in a position to contaminate fragile people, that vaccination makes it possible to avoid contamination and that all these objective elements are approved by the occupational doctor.”, he concludes.