Can the employer pre-emptively break the terms of employment of an employee who has been declared unfit?

Verified 22 April 2022 - Directorate for Legal and Administrative Information (Prime Minister)

If an employee is found unfit by the occupational doctor as a result of an accident or illness, the employer may, under certain conditions, if reclassification is impossible and if the opinion drawn up by the doctor indicates that he is unfit, terminate his CSD: titleContent early.

What is the employer's reclassification obligation?

Once the incapacity is recognized by the occupational physician, the employer must look for ways of reclassifying the employee.

Thus, he must examine the existing positions in the company that could be adapted to the employee's capabilities and offer them to him.

However, the employer is exempted from seeking a reclassification position if the notice of incompetence mentions any of the following:

  • Retention in employment could seriously damage the health of the employee
  • The employee's state of health makes it impossible to reclassify him into a job
From the search for reclassification to the termination of the CDD, is the employee paid?

On 1er The employee is not paid during the month following the notice of unfitness of the occupational physician and during which the employer seeks a reclassification solution.

If, at the end of this one-month period, the employee is not reclassified, the employer may terminate the CSD: titleContent following the dismissal procedure (call for prior interview, dismissal letter).

The employer must then resume payment of the salary corresponding to the employment held by the employee before his incapacity, until the dismissal.

Is the employee entitled to severance pay?

When the CSD: titleContent is broken, the employee is entitled to severance pay. It is at least equal in amount 

  • to that of statutory severance pay or the compensation provided for in the collective agreement if it is more favorable to the employee
  • or twice the severance pay where the incapacity is of occupational origin.

In the case of less than one year's service, the amount of the allowance shall be calculated proportionally the duration of employment.

The Precarious Compensation remains due to the employee.

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