June 23, 2021

Compliance: at the moment

 Compliance and proof; The company can force employees to return to work. It's way to control. The American Federal Health Agency has confirmed its "right" to require them to be vaccinated to do so, because they thus relay the general health policy. But how can companies monitor the effectiveness of these vaccinations? Because when the company thus becomes "prosecutor and judge" of its employees under Regulation Law (health in this case), there are probative questions that arise.

On May 28, 2021, the American federal agency The US Equal Employment Opportunity Commission - EEOC released a statement on whether employers can compel their employers to be back onsite (➡️📝EEOC Issues Updated Covid-19 Technical Assistance. Provided Additional Information on Vaccination, May 28, 2021).

If the New York Times immediately concluded that companies can immediately bring everyone back (➡️📝New York Times, Employers can require workers to get Covid-19 vaccine, US says, June 16, 2021), the Regulatory Agency is more nuanced because it follows the Anglo-American "balance of rights" method.

And the difficulty will probably lie rather in the probative question ... 



The first question is about this debate between “rights and responsibilities” of each other.

On the method, first of all: it is a British and American way which consists in balancing: here the "right" of the company to organize as it wants its operation, here conceived rather like a "right" taken from the employment contract, rather than as a unilateral disciplinary power. We know that legal traditions diverge on this essential point.

On June 10, 2021, BBC News relays the order in this direction from Goldman Sachs bank, on the managerial basis that teleworking for everyone would be an "aberration". It therefore expresses its power to organize the company, expressed moreover in a non-public note (➡️📻BBC News, "Goldman bankers ordered to report vaccine status before office return", June 10, 2021).

But it is in terms of balancing subjective rights that a British academic, quoted by the BBC, analyzes the situation: "Vaccinations create a conflict of legal protections, where the freedom of individual choice is weighed against the health and safety of others. "

"Some employees may have a justifiable reason for not wanting to take the vaccine, and we would always urge employers to discuss an employee's reluctance, whether it be related to a disability or religious reasons.".

As soon as we see Compliance through the contract, the analysis takes its foundations.

But the most important debate will be probative.



How can we make sure that people are actually vaccinated?

Companies can organize the vaccination themselves.

But people presenting certifications, the risk is great of falsified certifications. The difficulty is already encountered for crossing borders or entering public places, providers of falsified certifications immediately proliferating.

The stake is therefore the pre-constitution of reliable evidence (on the "probationary culture", inseparable from the "Compliance culture", ➡️📝 see Frison-Roche, M.-A., Training: content and container of Compliance Law, in ➡️📘Compliance Tools, 2021).

However, in Law, preconstituted proofs are more "legal proofs" (which do not have for goal truth but rather security and commitment) while the truth of a fact is freely proven Ex Post. This is here the Ex Ante proof of a fact (the vaccine).

The question of "trusted third parties" (and its dark double that is the falsifier) ​​is at the heart of Compliance Law. As he or she manages the detection of risks and the prevention of crises to protect people, the construction of a reliable system, that is to say probative is central.

Proof of vaccinations is just a first example. However, it is up to companies to build this evidence. To design them structurally? To bear the cost?

Undoubtedly yes, since this power exercised over others is conferred so that companies perform their Compliance obligations.


Subscribe to the French MaFR ComplianceTech® Newsletter

Updated: July 31, 2013 (Initial publication: Nov. 8, 2011)

Teachings : Les Grandes Questions du Droit, semestre d'automne 2011

Le système probatoire est construit sur la détermination de qui prouve, quoi prouver, comment prouver et quelle recevabilité s’impose aux moyens de preuve. Une fois exposé le système probatoire, peut être étudiée la quatrième question du droit : la personne. Est ici analysée son aptitude à être responsable, la responsabilité ayant pu être analysée comme ce par quoi l’être humain est hissé au niveau de la personnalité. L’on distingue la responsabilité pour faute et la responsabilité pour la garde d’une chose ou d’une personne. Jadis centré sur la personne du responsable, le droit se soucie désormais davantage des victimes.