Can non-vaccinated caregivers exercise another job when their employment contract is suspended?

As of this Wednesday, September 15, health personnel, the medico-social sector or even the firefighters must be able to justify at least one dose of vaccine against the COVVI-19, under penalty of seeing their contract suspended.Professionals having received only one dose must also present a negative test every 72 hours.They will then have until October 15 to complete their vaccination scheme.

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Caregivers without contraindications who have not received their first dose will they then be able to find another job during the suspension of their employment contract, in particular to ensure income while having a full vaccinal scheme?This is the question posed employees and employers on the eve of the entry into force of the vaccination obligation.As a reminder, more than 88% of healthcare professionals in nursing homes and hospitals and almost 94% of liberal staff had received a dose on September 7 according to Public Health France.

"During the suspension of the employment contract, two obligations are lifted: on the one hand the company no longer pays for remuneration and on the other hand the employee no longer performs work of work," explains Master Alexandra Sabbe-Ferri, lawyer in labor law.These two obligations lifted, "the contract still exists" but the employee is exempt "to be available to the employer".It is then theoretically possible to exercise another job for the duration of the suspension of the employment contract.

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Obligation of loyalty and exclusivity clause

Maître Sabbe-Ferri recalls that this mechanism is known since it already applies during a "sabbatical or business creation".In the case of the suspension of the employment contract for non-vaccination, two elements can however force the exercise of a second job.

The caregiver must first respect the obligation of loyalty, intrinsic to the employment contract, even during his suspension.This obligation prohibits unfair competition and therefore prevents any employee "from exercising another position which would place him in a situation of unfair competition vis-à-vis his first employer", indicates Me Sabbe-Ferri.Disloyal competition could for example be characterized by "the communication of confidential information to its new employer".The lawyer explains, however, that the contours of this obligation are not strictly defined and that it may be necessary to notify her first employer to obtain the second job to avoid a litigation.

Furthermore, the contract may contain an exclusivity clause which prohibits any other position, regardless of its nature.In this case, "each contract should be studied on a case-by-case basis" explains Me Alexandra Sabbe-Ferri.The employer can however decide to remove this clause after discussion with the employee.

Practical constraints

Other more concrete constraints could also prevent caregivers from finding another job.Without vaccination, it is first impossible for them to consider any temporary contract in their training sector, the medico-social.Jobs in establishments welcoming the public are also theoretically closed to them, unless they wish to carry out anti-Cavid tests every 72 hours.

In addition, caregivers who refuse vaccination for too long could expose themselves to sanctions in addition to the suspension.The law specifies, for the professions to order, that an employer who notes that a health professional can no longer exercise his activity for more than 30 days due to the vaccination obligation, must inform the National Council of theOrder of which the caregiver falls under.Order may then initiate ordinal disciplinary procedure.This procedure "could then lead to a dismissal procedure but its implementation will be complicated and it is difficult to predict how the orders will rule", nuance however Maître Sabbe-Ferri.

For unanswered professions, the law does not provide for a disciplinary procedure in the event of long -term suspension.Theoretically, a caregiver "could thus see his suspended contract ad vitam aeternam, without being dismissed" until he is vaccinated, explains Me Alexandra Sabbe-Ferri.

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Exercising another job in parallel with the suspension, hoping to find your main post in the long term, therefore represents above all a solution to ensure income pending the completion of your vaccination scheme.For the most experienced refractories, professional retraining seems necessary.