The new rules on physical unfitness (“inaptitude professionnelle”) set out in the “Loi Travail” and its implementing decree entered into force on January 1st, 2017. This reform was supposed to simplify the formalities to be fulfilled by the employer and to secure the termination consecutive to physical unfitness. The implementation of these new legal provisions however reveals some practical difficulties.
Reminder: the amendments
The reform mainly aimed to improve the legibility of the procedure leading to the declaration of physical unfitness and to standardize this procedure for all types of unfitness (work related or non-work related). The main changes brought by the reform are the following:
- Only one medical examination is now required before an employee can be declared physically unfit. The Labour physician can nevertheless still decide to carry out two medical examinations. In this case, there must still be 15 days maximum between the two medical examinations.
- Before the declaration of the physical unfitness, the Labour physician must carry out (i) a study of the workstation, (ii) a study of the working conditions in the premises and (iii) verify the date of the last update of the company’s medical report.
- The Labour physician can waive the employer’s obligation to search for alternate positions, subject to the mention in the declaration of the physical unfitness that (i) maintaining of the employee within the company would be detrimental to his/her health or (ii) the medical condition of the employee prevents him/her from holding any position.
- Before any offer of redeployment is made to the employee, the employer must consult the staff delegates regardless of the origin of the physical unfitness (work or non-work related).
- If alternate positions have to be searched, the employer must comply with the recommendations of the Labour physician. Provided the employer offers a position as comparable as possible to the employee’s former position and complying with the recommendations of the Labour physician the redeployment search obligation is deemed satisfied.
- If the employer is not in a position to propose an alternate position or the employee refuses the alternate position offered, the employee must be informed in writing of the reasons of the impossibility to maintain his/her employment.
The procedure to challenge the opinion of the Labour physician on the fitness to work has been extensively amended. The claim must be filed with the Labour Court which can, through summary proceedings, decide to appoint a medical expert, who will be requested to give an opinion on the employee’s fitness to work.
Practically: numerous uncertainties remain
Six months after the entry into force of the legislative reform of the rules on physical unfitness the lessons are mixed.
In practice, Labour physicians still carry out two medical examinations. The period between the two examinations indeed allow them to implement the study of the workstation and the working conditions in the premises of the company as required by the new rules.
Overall, Labour physicians tend not to use the full range of possibilities offered by the new legal provisions allowing for a waiver of all redeployment search within the company. Often the employers still have to search for alternate positions because the declaration of unfitness does not recall the legal mentions, even where the Labour physician noted the employee’s unfitness to hold any position within the company.
Even where the declaration of unfitness to all positions within the company complies with legal provisions, the question of the scope of the waiver remains. Case law will have to determine whether the waiver solely covers the obligation to search for redeployment within the company or also within the group to which the company belongs.
The new provisions are also unclear on the conditions under which the employer’s redeployment obligation may be deemed fulfilled with only one redeployment offer. Case law will have to determine whether the employer is allowed to take into account the wishes expressed by the employee and, if so, under what conditions.
References: Statute n°2016-1088 of 8 August 2016 relating to employment, modernization of labour relations and the securitization of the professional career paths – Decree n°2016-1908 of 27 December 2016 relating to the modernization of the occupational medicine