Hygiene, safety and work conditions in France / First Half-Year of 2017

July 25, 2017

The prevention of occupational hazards and the management of matters related to safety and the protection of health at work are both major concerns for all those involved in labor law. 

This newsletter reviews six notable court holdings in this domain from the first half of the year. 

1. Work incapacity and the impossibility to redeploy: the importance of consulting an occupational physician on redeployment offers or on the impossibility to implement such measures (cass. soc., January 11, 2017, n°15-22.485) 

An employer may only dismiss an employee declared unfit to work by the occupational physician if he can establish that it would be impossible to redeploy the employee elsewhere. 

The only exception being the case where the medical opinion declaring work incapacity specifies that: “any form of work performed by the employee would pose a serious risk to his health,” or: “the employee’s state of health precludes any form of work redeployment.” 

Upon return from a sick leave, an employee was declared unfit to work by the occupational physician. Consequently, her employer sought out redeployment possibilities. In doing so, he consulted an occupational physician who confirmed that the employee’s medical state would prevent her from continuing to work within the company. Thus, the employee was dismissed for work incapacity and for the impossibility of redeployment elsewhere. 

The employee contested her dismissal, particularly noting an absence of sufficient research conducted to determine potential redeployment opportunities. In its defense, the employer presented, among other things, its most recent correspondences with the occupational physician. This served as a legitimate defense, according to the French Supreme Court, which held that the employer adequately established proof of having satisfied the legal requirements by presenting the most recent medical evaluations received from the occupational physician. 

This decision confirms that it is in the employer’s interest to consult the occupational physician on the redeployment offers that he intends to propose to the employee or on the impossibility of redeployment due to the employee’s work incapacity. This is particularly significant given that, since January 1, 2017, the Labor Code has stipulated that: “the redeployment requirement is considered fulfilled once the employer has proposed alternate employment (…), taking into account the opinion and instructions provided by the occupational physician.” There is no better way to ensure that these measures are taken than to consult the health professional at the workplace. 

2. Reinstatement medical visits and disciplinary power: the absence of reinstatement medical visits limits the employer’s disciplinary power (cass. soc., March 6, 2017, n°15-27.577) 

After a maternity leave, an absence due to occupational illness or an absence of at least 30 days due to a workplace accident, illness or a non-occupational accident, the employee must be granted a reinstatement medical visit upon his recovery. It must be scheduled on the day that the employee returns to work or, at the latest, within the eight days following his return. This medical examination establishes whether the employee is fit to continue with his work and concludes the suspension of the employment contract. So long as the reinstatement medical visit has not taken place, the employee cannot be obligated to resume work, and the employer may not penalize him for his absence. 

After a sick leave of a period longer than 30 days, an employee resumed work for one day and then never again returned, without providing any explanation. After multiple warnings, the employer dismissed the employee for serious misconduct, without any preliminary reinstatement medical visit having taken place.

The employee brought claims against his employer to contest the dismissal. The trial court rejected his claims and validated the dismissal, holding that his return to work had concluded the suspension of his employment contract. This decision was reversed by the French Supreme Court, which reasoned that, in the absence of a reinstatement medical visit, an employment contract remains suspended. 

If this holding is, in legal terms, not particularly surprising, it remains an appeal to the vigilance and duty of care which must be exercised by practitioners: only the organization of a reinstatement medical visit upon an employee’s recovery will return to the employer its full disciplinary powers. 

3. Reinstatement medical visits requested by the employee: informing the employer on the day of the reinstatement visit is considered to be too late (cass. soc., February 8, 2017, n°15-27.492) 

In principal, the duty to organize a reinstatement medical visit is held by the employer, as part of his safety responsibilities. However, the employee may also directly consult an occupational physician. He must, however, inform his employer of this undertaking before the medical examination is performed. This preliminary notification requirement is necessary in that the reinstatement medical visit concludes the suspension of the employment contract and, consequently, triggers obligations for the employer to seek out redeployment opportunities, to resume payment of the employee’s salary or, possibly, to terminate employment due to work incapacity. 

An employee consulted an occupational physician, organizing a pre-reinstatement medical visit after which the health professional found a total and definitive work incapacity, threatening immediate risk to her health. Nearly a month later, she terminated her employment contract, accusing her employer of neither resuming payment of her salary nor seeking redeployment opportunities, arguing that the medical visit organized upon her request should qualify as the reinstatement medical visit. 

The French Supreme Court did not share this opinion, concluding that the medical visit organized by the employee could not qualify as the reinstatement medical visit in the absence of preliminary notification to the employer. Indeed, the employer had not been informed of the visit until the very day of the medical examination, and this only by means of a registered letter with A/R. The preliminary element of notification was not satisfied. Under these circumstances, the opinion provided by the occupational physician was judged to be unenforceable against the employer, and the employee’s actions produced the effects of a resignation. 

4. Part-time period for medical reasons: the conclusion of a part-time period taken for medical reasons justifies the termination of a fixed term, replacement contract (cass. soc., November 23, 2016, n°14-10.652) 

When it is entered into in order to ensure the replacement of an absent employee, a fixed term contract may be confined to indicate a minimum duration; its termination would then be the return to work of the person who had been replaced. 

In the case at hand, a part-time, fixed term contract was entered into to ensure the replacement of a full-time employee who had begun working part-time for medical reasons. When this part-time period came to an end, the employer notified the replacement of the expiration of the fixed term contract. However, the replaced employee did not resume work at full-time but, instead, at voluntary part-time. The replacement employee consequently contested the termination of his employment, arguing that it had taken effect prematurely and that his contract should continue until the replaced employee resumed work under the original conditions, namely, full-time. 

The French Supreme Court ruled against him. A fixed term contract expires at the same time as the period of part-time for medical reasons, regardless of whether the replaced employee resumes work at part-time. A large amount of litigation of this type can be avoided by specifying with care the precise conditions of the fixed term contract’s expiration. 

5. Incapacity and seeking out redeployment opportunities: the employer may take into consideration an employee’s implicit situation to limit the geographic scope of his search for redeployment opportunities (cass. soc., February 8, 2017, n°15-22.964) 

In our last OnPoint, we discussed the potential departure from previous case law, which would allow the employer to consider the position conveyed by the employee declared unfit to guide his search for redeployment opportunities. This departure is now confirmed. 

Once an employee is declared unfit to work by the occupational physician, the employer must seek out a way to adapt the employment position to the employee’s needs or to find redeployment opportunities in conformance with the medical instructions. Until recently, the employee’s refusal – whether presumed or explicit – to accept another position held no bearing on the extent of the geographic scope of the search for redeployment opportunities. The employer had to override the employee’s desire. 

In the case at hand, the employee who had been declared unfit to work was offered redeployment positions on French territory. The employee refused these offers given his family situation and the geographic distance of the proposed positions from his home. Accordingly, the employer decided not to offer him redeployment positions abroad. 

The French Supreme Court again validated this approach. The employer could validly consider the employee’s rejection of redeployment positions on French territory due to their geographic distance from his home and family as an implicit rejection of redeployment positions located abroad. In view of these decisions, the establishment of a redeployment questionnaire concerning possible destinations for the unfit employee is emerging as a developing practice. 

6. Incapacity: an employee declared unfit to work cannot be forced to take his paid holiday while awaiting redeployment (cass. soc., March 1, 2017, n°15-28.563) 

If by the end of the month following an assessment of work incapacity, the employee is neither redeployed nor dismissed, the employer must resume payment to the employee of the salary equivalent to the position occupied prior to the suspension of his employment contract. This requirement lasts as long as the employment contract continues. But could one consider this requirement to be fulfilled once the employer places the employee on paid holiday or grants him paid holiday compensation?

An employee was declared definitively unfit for any position within the company. He was neither redeployed nor dismissed. The employer resumed payment of the employee’s salary after one month, as required by law. However, during part of this period, the employee was placed on paid holiday. In this way, the employer defaulted on its legal duty owed to the employee. Thus, the employee terminated his employment contracted. 

According to the lower court, there was no valid complaint to be made to the employer, as placing the employee on paid holiday did not impact his compensation. The French Supreme Court disagreed. It reasoned that the employer must, at the end of the month following the incapacity assessment, resume payment of the employee’s salary, and may not substitute this requirement with the payment of paid holiday compensation or force the employee to take a paid holiday. This decision calls for employers to demonstrate a rapid search for possible redeployment opportunities, which could begin as soon as the occupational physician conducts his work capacity assessment.

Lire en français: Sélection de jurisprudence - France / Premier semestre 2017

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