Who says back in business, says Covid-19 screening test?
Not so sure.
Indeed, at the time of deconfinement, the political strategy set out by the government is clear: people who show symptoms of the virus and those who have been in close contact with infected people will be tested.
Could companies, in the coming weeks, organize their own screening campaign?
More generally, could they require their employee to use the test?
1. Hypothesis 1: A screening campaign organized by the company
The national deconfinement protocol published by the government is firm: "screening campaigns organized by companies for their employees are not authorized". (1)
The justification for this absence of authorization can be summed up in a few lines: “Carrying out these samples on medical prescription is painful, logistically complex (protective equipment and patient data flow) and must be performed by trained professionals. "
The government therefore concludes that "at this stage, no organization by employers of samples for virological screening can be part of the national screening strategy".
Thus, companies cannot force their employees to be screened as part of a campaign to be organized by the company.
2. Hypothesis 2: The screening test carried out on certain employees of the company
In normal times, the employer can - when certain conditions are met - have recourse to a somewhat “intrusive” device with regard to the employee.
This device is that of the alcohol test. Its use by the employer with regard to its employees is strictly supervised. Indeed, the Court of Cassation had the opportunity to consider that "does not constitute an infringement of a fundamental freedom" the recourse to the test of blood alcohol level therefore: (2)
- "that having regard to the nature of the work entrusted to this employee, such a state of intoxication is likely to expose people or property to danger"
- "that the methods of this control, provided for in the internal regulations, allow the dispute, little matter that it is carried out, for technical reasons, outside the company"
So that the use of such a device is not considered to infringe on a fundamental freedom of the employee, the test must be necessary in order to guarantee the safety of the employee and the people working with him. It is also necessary that the modalities of the test can be challenged - and therefore previously registered in the internal regulations.
If we risk the rough comparison between the use of a blood alcohol test and a Covid-19 screening test, we realize that the second condition, relating to the methods of carrying out the test, risks d 'be problematic in the context of the Covid-19 test since it is unlikely that companies have ruled on the issue within the internal regulations.
Finally, the CNIL recalled that "only competent health personnel (in particular occupational medicine) can collect, implement and access any medical files or questionnaires from employees / agents containing data relating to their state of health or information relating in particular to their family situation, their living conditions or even their possible movements ”. (3)
This recommendation ends up prohibiting the carrying out of the test in a company, including occasionally and on some of the employees.
3. Hypothesis 3: Force the performance of tests outside the company?
This possibility raises still other questions.
First, and before any legal consideration, the practice of testing in France remains limited to those with symptoms of Covid-19 and to those who have been in contact with infected persons. In such a context, it appears difficult for any employee who does not fall into these two scenarios, to be tested, even if that was their wish.
Second, this question immediately calls up two texts, which are article L. 1121-1 of the French Labor Code (4) protecting the employee's private life, and article L. 1132-1 of the same Code (5), which prohibits all discriminatory measures due to health conditions, in particular.
Thus, the fact of requiring the employee to have recourse to a test outside the company could be perceived as contravening the preservation of the individual rights and freedoms of the employees. Furthermore, any subsequent measure could be considered discriminatory.
Finally, this scenario seems definitively to be banished since it appears from the CNIL recommendations that the collection of medical data on employees directly by the employer is completely prohibited.
Indeed, the test results are "subject to medical confidentiality".
The company could, in any case, "receive only the possible notice of suitability or unfitness to return to work issued by the health professional".
As a result, the employer “will only be able to process this single piece of information, without any other details relating to the employee's state of health, in a manner analogous to the treatment of sick leave which does not indicate the pathology whose employee is affected ”.
- « Protocole national de déconfinement pour les entreprises [...] » : https://travail-emploi.gouv.fr/IMG/pdf/protocole-national-de-deconfinement.pdf
- Cass., Soc., 31 mars 2015, n° 13-25.436 : https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000030445949
- Coronavirus (COVID-19) : les rappels de la CNIL sur la collecte de données personnelles par les employeur, 07 mai 2020 :https://www.cnil.fr/fr/coronavirus-covid-19-les-rappels-de-la-cnil-sur-la-collecte-de-donnees-personnelles-par-les
- L. 1121-1, Code du travail : https://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle=LEGIARTI000006900785&cidTexte=LEGITEXT000006072050&dateTexte=20080501
- L. 1132-1, Code du travail : https://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle=LEGIARTI000041411987&cidTexte=LEGITEXT000006072050&dateTexte=20191229
Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
CHHUM AVOCATS (Paris, Nantes, Lille)
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