When an employee is deemed unfit by the occupational physician, the employer must follow a precise procedure to avoid disputes. Dismissal for incapacity is complex and requires special attention to prevent any cancellation. It is a delicate process that should not be overlooked to avoid issues before the labor court.
Defining dismissal for incapacity
When an employee is declared unfit for their job by the occupational physician, the employer may decide to terminate their contract. This incapacity can result from illness, disability, or accident, whether related to work or not. To do this, the employer must follow a strict procedure outlined in the Labor Code.
This process requires the employer to offer the employee suitable reclassification solutions before considering dismissal for incapacity. In case of failure to find reclassification solutions, dismissal can be considered, but with caution to comply with legal obligations.
It is essential for both the employer and the employee to be informed about their rights and responsibilities throughout this complex procedure. Errors in implementation can lead to the cancellation of dismissal for incapacity. Therefore, it is crucial that both parties remain vigilant and informed to ensure the employee’s rights regarding wages and compensation are respected.
Employer’s duties in case of dismissal for incapacity
When an employee is declared unfit by the occupational physician, the employer must respect the legal procedure before making a dismissal decision. Here are the steps to follow to avoid any errors:
- Wait for the preliminary opinion: The occupational physician must first give an opinion on the employee’s incapacity.
- Respect the legal procedure: The employer must scrupulously follow the rules established in the Labor Code.
- Propose alternative solutions: Before considering dismissal, measures should be taken to reclassify or train the unfit employee.
It is essential to comply with these guidelines to avoid any future disputes and act legally when an employee is deemed unfit for their position.
Schedule the return medical visit
When an employee is on sick leave for more than three months, whether due to a work accident or an illness, they must undergo a return medical visit with the occupational physician. This visit will determine if the employee is unfit for work.
The employer must organize this visit within 8 days of receiving the employee’s request. In case of exceeding this deadline, damages may be owed by the employer. If no return medical visit takes place, the employee’s employment contract is suspended, preventing the employer from dismissing them.
Professional retraining
When an employee is deemed unfit to return to their job, it is crucial for the employer to offer them another position compatible with their abilities. This new position should correspond as closely as possible to their previous duties, taking into account the recommendations of the occupational physician. To facilitate this process, involvement of the company’s social and economic committee is necessary to ensure adequate reclassification. In case of dismissal without exploring this option, it could be considered abusive.
- Propose a position adapted to the employee’s abilities
- Take into account the recommendations of the occupational physician
- Involve the company’s social and economic committee to facilitate reclassification
- Avoid any abusive dismissal by offering an adequate reclassification opportunity
Check the opinion of the CSE
When an employer considers dismissing an employee for incapacity, they must consult the company’s social and economic committee (CSE) beforehand. This step is crucial to demonstrate willingness to find an alternative solution, such as offering another position to the affected employee. Failure to consult the CSE before dismissal could challenge the decision and potentially lead to its cancellation. It is imperative to follow this legal procedure to avoid future disputes.
Avoid pitfalls in case of incapacity at work
In case of incapacity, the employee must protect their rights to avoid losing their benefits. Here are the mistakes to avoid: • Be vigilant about preserving rights in case of unemployment.
Failure to comply with the return medical visit
When an employee returns to work after a prolonged sick leave, their employer must organize a return medical visit with the occupational physician. If this visit is not scheduled on time, the employee must inform the employer to protect their rights and request compensation if they suffer harm. This ensures that the employee is properly taken care of and that their rights are respected regarding their health at work.
Inability to find a new job
When an employee cannot be reclassified, the employer must explain in writing the reasons to them. In case of failure to comply with this rule, the employee is entitled to compensation.
It is important for the employee to verify that the employer has actively sought reclassification solutions before any dismissal for incapacity. Otherwise, the dismissal could be canceled, and the employee could seek compensation for damages.
Maintained salary
When an employee is declared unfit for work and no reclassification or dismissal measures are taken within a month, the employer must continue to pay their usual salary. Failure to do so entitles the employee to compensation for the harm suffered. This can be avoided by respecting the rules related to incapacity at work and acting promptly to find an adequate solution.
Avoid mistakes for the employer
Some violations of the labor code can have serious consequences for an employer.
Failure to comply with rules for protected employees
For certain protected employees, such as works council representatives or pregnant employees, dismissal for incapacity requires more complex procedures. It is necessary to inform the labor inspector or obtain administrative authorization. Failing to comply with these specific obligations can invalidate the dismissal decision.
Impossible reclassification without justification
When an employer considers dismissing an employee, they must first offer reclassification opportunities. If it is not possible to find another position for the employee, the employer must explain the reasons in writing. In case of lack of valid justification, the employee has the right to claim compensation for the harm suffered. This ensures a degree of fairness and protection for workers in case of dismissal.
Advice from a doctor
To dismiss an employee for incapacity, it is essential for an occupational physician to declare the incapacity and issue an official opinion. Relying on another physician’s opinion is not legally valid and can have serious financial consequences for the employer.
The process of dismissal for incapacity must follow a strict procedure. The employer must schedule the return medical visit promptly and explore all available reclassification options.
Failing to comply with these steps can lead to the cancellation of dismissal or payment of significant compensation. It is essential to clearly inform the employee of the reasons for dismissal and the impossibility of reclassification through a formal notification.
It is highly recommended to seek advice from a lawyer specializing in labor law to ensure that all legal obligations are met correctly.
- Occupational physician: The declaration of incapacity must be made by this professional.
- Strict procedure: Following the prescribed steps avoids future issues.
- Reclassification: The employer must actively seek alternative solutions before any dismissal.
- Legal advice: Formally informing the employee is crucial to avoid disputes.
Pascal Petibon, born in 1980 in Lyon, is a renowned journalist and author, passionate about information and communication. After earning a degree in journalism from the University of Paris, he quickly joined various editorial teams, where he became known for his sharp analysis and clear writing style.
