Be careful about the content of notices of unfitness delivered by the occupational health physician, even when one of the two boxes of exemption from the search for a new job is checked off

Cass. Soc. December 13, 2023, n°22-19.603

In a case decided on December 13, 2023 French highest civil reminded that it is critical to pay the utmost attention to the content of a notice of unfitness issued by an occupational healthphysician concerning an employee.

In this case, the occupational healthphysician had completed the standard form notice of unfitness, and had the box stating that “the employee’s state of health precludes any reclassification to another job”.

The employer then thought it was validly exempted from any search for a new job, as the occupational healthphysician had expressly referred to one of the two cases of exemption from the search for a new job provided for by the law, namely “the employee’s state of health hinders any reclassification in a job” or “any continuation of employment would be seriously detrimental to the employee’s health“.

In this context, the concerned employee was dismissed on the grounds that he was medically unfit for his job and that it was impossible to redeploy him.

However, the occupational physician’s notice also stated that ” the employee’s unfitness precluded any reclassification on the work site”.

Based on this precision, the dismissed employee challenged his dismissal and claimed that the employer had failed to meet its obligation to search an alternative position.

In response, the employer sustained that the occupational physician having ticked off one of the two cases of exemption provided for in articles L.1226-2-1 and L.1226-12 of the French Labor Code, the employer was exempt from any search for a new job, regardless of the additional details provided by the physician.

The Highest civil court, upheld the lower court’s and, rejected the employer’s argument.

The court found that although the the occupational physician referred actually to a case in which the employee was exempt from the search for a new job, he nevertheless limited this exemption to the employee’s working site; the employer was therefore obliged to seek to redeploy him within its other working sites/establishments.

The Court thus ruled that the employer had breached its obligation by not seeking to reclassify the employee within other establishments and that, consequently, the employee’s dismissal was wrongful.

Employers cannot therefore systematically consider that they are exempt from any search for a new job merely because the occupational health physician has referred to one of the two statutory cases by ticking the corresponding box of the standard unfitness form. Employers must also pay close attention to any additional details added by the occupational health physician in the notice of unfitness. In case of doubt, it is advisable to contact the occupational health physician to confirm his position and the employer’s related obligations.