Medical unfitness for work: employer’s legal obligations and employee’s rights
What are the latest legal changes concerning medical unfitness for work, specifically those mentioned by the Supreme Court (Court de cassation) in France? What must be stated in a dismissal letter to avoid legal disputes? What are the main steps in the medical unfitness for work procedure?
The constant changes in social law require rigorous monitoring and specialized expertise. This is why Primexis has teamed up with the law firm Dupard & Guillemin to address your concerns in this area.
The main steps in the medical unfitness for work procedure and the latest developments
Medical unfitness: key numbers to remember
– The resumption medical exam must be organized by the employer following: maternity leave; absence of any length due to a work-related illness; absence of at least 30 days due to a work-related accident, or absence of at least 60 days due to a non-work-related illness or accident (compared to 30 days before March 31, 2022)
– For one (1) month from the date the employee is declared unfit for work, the employer is not obliged to pay the employee their salary. At the end of this period, if the employee has not been redeployed or dismissed, their salary must be paid once again even if they cannot work
– Legal dismissal indemnity is ipso facto doubled (x2) in the event that the unfitness resulted from a work-related accident, unless the collective agreements are more favorable
– Zero months’ advance notice in the event of dismissal due to impossible redeployment following non-work-related unfitness; if the cause of unfitness is work-related, the employee receives the legally stipulated compensation in lieu of advance notice. This indemnity is subject to contributions but does not generate paid leave.
The long-awaited clarifications from the French Supreme Court
Statement of unfitness for work and exemption from consulting the Social and Economic Committee (CSE): logic prevails
French Labor Code stipulates consulting the Social and Economic Committee prior to sending a redeployment proposal to an employee, who has been declared unfit for their position.
Certain jurisdictions required this consultation even when the occupational health physician had issued a statement of unfitness WITHOUT redeployment. The French Supreme Court says NO: the employer is exempted from consulting the CSE when the occupational health physician has specifically mentioned, in their opinion, an exemption from redeployment legally stipulating that, “any continuation of the employee in their job would be seriously detrimental to their health,” or “the employee’s state of heath is an obstacle to any redeployment in a job.”
As the employer is not obliged to look for a new position, they are logically not obligated to consult the CSE in this search. (Social Cassation, 16 November 2022, no. 21-17.255 – Confirmation Social Cassation’s decision, 8 June 2022, no. 20-22.500)
A statement of unfitness can still be contested within two weeks: no more prevarication
After receiving a medical finding of unfitness, the parties may wish to contest either the nature of the medical elements or the phases of the procedure, such as workstation analysis. However, the procedure rules for contesting were confusing due to a succession of reforms. It is now unequivocal: a statement of unfitness – mentioning the legal avenues and timeframe of appeal and not having been the object of challenges within the 2-week period – can no longer be contested. This notice is binding on the parties and judge, and whether the objection concerns a medical or non-medical element (Social Cassation, 7 December 2022, no. 21-23.662).
Redeployment limited to Group’s companies in France
The employer’s obligation to redeploy employees is assessed at the Group level in France. The French Supreme Court has confirmed that this obligation doesn’t extend to other companies outside the Group, even if the employer had taken the initiative to look for positions in these companies (Social Cassation, 16 November 2022, no.21-12.809).
Dismissal Letter
The dismissal letter must mention “impossibility of redeployment” – this is not new, but it is important to mention again
The dismissal letter must not only mention medical unfitness for work but also the impossibility of redeployment. Otherwise, the dismissal is devoid of real and serious cause (Social Cassation, 14 September 2022, no. 21-14.719).
Did you know?
When the employee, concerned by the unfit for work status, is recognized as a disabled worker, two options are simultaneously available for the employer, who has been informed of this:
– General obligation to seek redeployment
– Specific obligation for disabled worker to adapt a position as stipulated in Article L. 5213-6 of the French Labor Code. Appropriate measures must be taken in order that the employee in question can keep their job.
To fulfill this obligation, it is pertinent to involve the occupational health physician and contact the Sameth (French support service for maintaining employment for disabled workers). The company therefore reduces the risk that the dismissal will be null and void because of discrimination based on health status with a penalty of at least six months’ salary.
