If the employee’s consent is imperative to receive the AstraZeneca vaccine, the employer must also respect medical confidentiality. Which is not always easy.
VACCINATION – Getting vaccinated within your company is now possible. If you are between 50 and 64 years old and have comorbidities, you can from this Thursday, February 25, benefit from the AstraZeneca vaccine , administered by occupational medicine, provided that doses are available. A device supposed to allow the employees concerned to benefit more simply from the vaccine against Covid-19 , but which is not without raising some questions of labor law.
This vaccination concerns employees aged 50 to 64 inclusive, suffering from comorbidities (cardiovascular diseases, diabetes, cancers, chronic respiratory pathologies, obesity, etc.). The vaccine is administered by company-internal occupational physicians or inter-company occupational health services, and it is only AstraZeneca serum , the others being reserved for the elderly and caregivers.
This vaccination must be consented by the employee. It is in no way obligatory. This means that “the employer cannot force an employee to be vaccinated, in which case this would be discriminatory”, underlines to HuffPost the lawyer specializing in labor law, Eric Rocheblave . An employee can therefore be part of the age group concerned and present with comorbidities, without however being obliged in any way to undergo vaccination in the workplace.
On the other hand, the employer has the obligation to inform the employees of this possibility of being vaccinated. “It is here only an instrument of vaccine policies, because the vaccine is not obligatory, but if it does not transmit this information, it is a question of a fault, a failure to its obligation” , adds the lawyer.
So: your employer has a duty to inform you, but you have no obligation to get vaccinated, regardless of your state of health. In fact, the employer cannot in any way encourage his employees to be vaccinated or to target the possible concerned.
Like general practitioners, occupational physicians within companies or from inter-company occupational health services (the majority of them) can vaccinate the targeted volunteers, assisted by nurses from the occupational health services .
Vaccinations are entered into a dedicated national information system, Vaccin Covid, accessible via Health Insurance and its AmeliPro site to health professionals.
What guarantee of medical confidentiality?
Another problem that could arise from this procedure is that of the guarantee of medical confidentiality. “All information relating to the state of health is a matter of private life and does not concern the employer. An employee therefore does not have to inform his employer of co-morbidities or health failures. His privileged interlocutor is the occupational physician ”, explains Éric Rocheblave.
But what will happen when an employee goes away to get vaccinated? While it may be a routine visit to occupational medicine, there is no doubt that the employer will consider vaccination. “Without an established provision, there is currently no guarantee of medical confidentiality”, regrets the lawyer. For some employees, this will certainly not be of the slightest importance, but not everyone wants this information to be known.
This is why Éric Rocheblave recommends that employers “ set up a protocol with the occupational physician to provide the best possible information and put the odds on their side in terms of data protection. Why not take the opportunity to set up the periodic visit with occupational medicine? ”He asks himself. A strategy for all employees to see the doctor and get around the problem.
A period of 4 to 12 weeks is expected between the two doses. In the event of a delay for the booster, the vaccination can resume regardless of the delay but a second dose must absolutely be administered, according to the HAS.
What about side effects?
If the vaccine in the workplace is not compulsory, what will happen if the employee develops side effects? To avoid a possible anaphylactic shock, the employee must remain under surveillance for at least 15 minutes. Before vaccination, a consultation must be carried out. If, despite everything, side effects occur, “it will not be a work accident”, emphasizes Éric Rocheblave. And the compensation in the event of a work stoppage will therefore not be the same.
The ANSM noted, for the AstraZeneca vaccine , 149 reports of influenza-like illness, often of high intensity (high fever, muscle stiffness, headaches), mostly affecting healthcare professionals of average age of 34, among some 10,000 people vaccinated between February 6 and 10, 2021. “These adverse effects are known and described with vaccines”, indicates the ANSM .
However, the employee cannot choose a vaccine other than AstraZeneca. Favor a vaccine rather than another, a right of the employee who, there too, notes Eric Rocheblave, “can ask questions”.