Incapacity to work of an employee after sickness

Verified 08 November 2023 - Directorate for Legal and Administrative Information (Prime Minister)

Depending on the consequences of your illness on your state of health, the occupational doctor may declare you unfit, partially or totally, to resume your initial employment. However, it may declare you capable of performing other functions in the company appropriate to your physical abilities. In this case, unless exceptions are made, your employer must offer you another position (we are talking about reclassification). We present you with the information you need to know.

Warning  

Do not confuse incapacity, which is pronounced by the occupational physician, and disability, which is decided by the medical officer of your social security body (CPAM: titleContent or MSA: titleContent).

As an employee, you can request a medical examination from your occupational doctor on your own initiative. The examination can be arranged during your sick leave.

The employer may also be the initiator of this process.

Prior procedure

Your incapacity must be established by the company medical officer, and not by your treating doctor.

The occupational doctor will study your health (physical and/or mental) to determine whether you can resume your job completely or partially. If this is not the case, he can declare you unfit.

Before issuing an opinion of unfitness, the occupational physician must observe the following steps:

  1. Do a medical examination and possibly tests
  2. Conduct a job study (i.e., make sure your working conditions are in line with your health)
  3. To carry out a study of working conditions in the establishment (with an indication of the date on which company card has been updated)
  4. Discuss with the employer his observations and proposals on a possible change of position

The occupational physician may request further examinations and carry out a second medical examination, at the latest 15 days after the first examination.

After these steps, the occupational doctor may declare you unfit for your position if he finds that no adjustment, adaptation or transformation of the work station occupied is possible and that your health justifies a change of position.

Notice of Incapacity

If the occupational doctor declares you unfit for duty, he must draw up a notice of unfitness and send you a copy.

The notice of incompetence shall contain written conclusions and indications concerning your reclassification.

The occupational physician may mention in the notice of incompetence one of the following points:

  • Retention in employment would be seriously detrimental to your health
  • Your health makes it impossible to reclassify into a job

The employer must take into account the opinion and the instructions or proposals of the occupational doctor.

If he refuses, he will write to you the reasons for his opposition. He shall also communicate them to the occupational doctor.

Appeals

You (or your employer) may appeal the decision of the occupational physician before the Labor Board within 15 days of the notification of the opinion of unfitness.

The labor board may consult the labor inspector.

Who shall I contact

Obligation to reclassify

When the occupational doctor has declared you unfit to return to your original job, your employer must offer you another job that matches your abilities.

However, your employer is exempted from looking for a position to reclassify you if the notice of unfitness mentions any of the following:

  • Your continued employment would be seriously detrimental to your health
  • Your state of health makes you unfit for any professional activity

Characteristics of the proposed use

Your employer's proposal must take into account, after consulting the Social and Economic Committee (ESC), the following:

  • Written conclusions of the occupational doctor
  • Information he has given on your capacity to perform any of the tasks in the company

The occupational doctor also decides whether you can take training to take a suitable job.

The proposed job must be as close as possible to the job you held before your work stoppage.

If necessary, your employer implements measures such as the fitting-out, adaptation or conversion of existing positions or the fitting-out of working time.

Reclassification must be sought among the jobs available in the company (all establishments and all sectors).

If the company belongs to a group, reclassification must also be sought among companies located in France whose activities, organization or place of operation make it possible to exchange all or part of the staff.

If your employer is unable to offer you another job, he or she must inform you in writing of the reasons for the reclassification.

You are free to refuse the proposed employment.

Deadline

No delay minimum or legal maximum is not required of your employer to fulfill its reclassification obligation.

The employer does not have to pay you during the 1er months of job search. However, treaty provisions contrary may provide for it.

If you do not reclassify and break your contract at the end of this one-month period, the employer must pay you the salary corresponding to the job you held before your incapacity. Payment continues until you are reclassified or the contract is terminated.

You're on a DTA

You can be licensee for incapacity in any of the following cases:

  • You refused the job that your employer offered you
  • Your employer justifies the impossibility of offering you a job
  • The notice states that your continued employment would be seriously detrimental to your health
  • The notice states that your health condition makes it impossible to reclassify into a job

Once the dismissal is pronounced, you are entitled to compensation under certain conditions related to the breach of your contract. These differ depending on whether your incapacity is of occupational origin or not (accident or illness of everyday life).

You're on a fixed-term contract

Your CSD can be prematurely broken if any of the following conditions are met:

  • You refused the job that your employer offered you
  • Your employer justifies the impossibility of offering you a job
  • The notice states that your continued employment would be seriously detrimental to your health
  • The notice states that your health condition makes it impossible to reclassify into a job

Once the breach of your contract is pronounced, you are entitled to compensation under certain conditions related to this breakup. These differ depending on whether your incapacity is of occupational origin or not (accident or illness of everyday life).

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