Following a piece stoppage, the worker could also be deemed unfit for his place. The employer then has to take steps: situations, redeployment procedures, fee of wage or allowances, replace on the obligations to be complied with.
The choice of incapacity: who decides on the incapacity of the worker?
The choice of incapacity is said by the occupational doctor
Incapacity can solely be declared by the corporate’s occupational doctor. No different physician has this capability, neither the overall practitioner nor the social safety medical adviser.
The occupational doctor research the worker’s state of well being and determines whether or not he can resume his job in entire or partially.
Earlier than declaring incapacity, the occupational doctor should comply with the next steps:
- perform a medical examination and extra examinations if vital, a second examination might happen inside 15 days;
- research the place as a way to examine that the working situations are appropriate for the worker’s state of well being;
- perform or replace an organization file throughout the construction to check the working situations within the firm;
- Talk with the employer to search out out his opinion and his observations on the present place of the worker, in addition to to find out the attainable positions throughout the firm for a reclassification.
On the finish of those phases, the occupational doctor declares the worker unfit when there isn’t a risk of adapting the place, adapting or reworking the present workstation and that the state of well being of the worker requires a change of place.
To declare an worker unfit, the occupational doctor writes a discover of incapacity. This discover of incapacity consists of written conclusions and indications for a attainable reclassification. It’s attainable to see point out, for instance, of your state of well being making any reclassification in a job not possible.
The employer should keep in mind these indications and proposals drawn up by the occupational doctor when fulfilling his reclassification obligation.
Skilled incapacity and invalidity: two notions to obviously distinguish
The declaration of incapacity is to not be confused with the declaration of invalidity declared by the social safety medical adviser.
The confusion is to not make, the employer who would apply a process of dismissal for incapacity, an worker who has grow to be disabled, would see his dismissal process invalid and reviewed as dismissal with out actual and severe trigger.
What to do when confronted with a declaration of incapacity by an worker?
When the employer has info of the declaration of incapacity of his worker, he should set off a dismissal process for incapacity by respecting prematurely his obligation to hunt reclassification and session of the CSE.
Session of the social and financial committee (CSE)
In corporations with lower than 11 workers, there isn’t a CSE obligation, so no session of the CSE is important.
In corporations whose workforce is between 11 and 50 workers, it’s attainable CSE can be elected and the employer should seek the advice of this CSE throughout his reclassification proposal course of.
If there was no CSE elected, it’s the distinctive case of lack of representatives throughout skilled elections. If the corporate has filed its deficiency report, it doesn’t seek the advice of the CSE as effectively.
If the corporate has not elected workers representatives to the CSE by breach of its obligations, then the dismissal for incapacity might be requalified as dismissal with out actual and severe trigger for the reason that CSE is not going to have been consulted.
Therefore the significance of getting up-to-date workers consultant elections in an organization, it isn’t attainable to foretell when an worker could also be declared unfit for his place.
Reclassification obligation: what does this step encompass?
The employer has the duty to aim to reclassify the worker declared unfit for an additional place.
For this, it’s vital to supply one other job similar to the capacities of the worker.
If reclassification proves not possible, then he should notify the worker in writing of the explanations for the impossibility of reclassification.
This letter should be despatched to the worker earlier than the dismissal process.
Exemption from reclassification
If the discover of incapacity drawn up by the occupational doctor mentions that persevering with to work could be critically detrimental to the worker’s well being or that the worker’s state of well being renders him unfit for any skilled exercise, then the employer is exempted from searching for a job to reclassify his worker.
When the employer is searching for a reclassification place, he should keep in mind the opinion of the CSE, in addition to the written conclusions of the occupational doctor and the indications given on the flexibility to carry out present duties within the firm.
The redeployment should be broadened among the many jobs out there within the firm, all institutions and all sectors mixed. If the corporate belongs to a gaggle, the reclassification is prolonged amongst corporations positioned in France.
The job supplied should be in writing and the worker is free to refuse this supply.
If no job is feasible, the employer should nonetheless produce a written assertion with the explanations opposing the reclassification.
No minimal or most authorized interval is imposed by regulation to satisfy this obligation. However the salary maintenance past 30 days permits this obligation to be rapidly fulfilled by the employer.
Exemption from reclassification and session of the CSE
Ought to the employer seek the advice of the CSE if he’s exempted from reclassification by the occupational doctor?
In a judgment of the Courtroom of Cassation of June eight, 2022, n20-22500, it’s specified that the exemption from reclassification permits the employer to even be exempted from session of the CSE.
Nonetheless, this judgment doesn’t verify that there’s an exemption from written notification to the worker of the explanations for the impossibility of reclassification. If doubtful and as a way to safe the dismissal, it’s due to this fact preferable to make this writing.
Contesting the worker’s incapacity discover
There’s the chance for the worker, identical to for the employer, to contest the opinion of incapacity of the occupational physician.
The time restrict for contesting is 15 days from the notification of the discover of incapacity. The attraction is made to the commercial tribunal.
If the discover of incapacity is hand-delivered to the worker on the day of his go to, then it should be ensured that the occupational doctor has had him signal a remittance in opposition to discharge. In any other case, the 15-day interval doesn’t run and the worker can then contest this incapacity for a interval which can be indefinite (Cass. soc. March 2, 2022, n 20-21715). Certainly, the interval of 15 days runs from the acknowledgment of receipt or the signature of the hand supply. In any other case, the dismissal might be reclassified with out actual and severe trigger.
What should be paid within the steadiness of any account of the worker declared unfit?
The employer doesn’t need to remunerate his unfit worker throughout the 1st month of the seek for reclassification, apart from extra favorable contractual provisions.
After this one-month interval, if the contract has not but been terminated, the employer should return the fee of the wage to his unfit worker. This wage continues till redeployment or till the termination of the contract.
Dismissal for non-professional incapacity
If the incapacity is linked to an sickness or an accident exterior to the corporate, the breach of the contract offers the worker the correct to:
- the fee of the authorized indemnity for dismissal or the traditional indemnity if extra beneficial;
- a compensatory indemnity for acquired nation go away not taken on the date of the termination of the contract.
Dismissal for skilled incapacity
If the incapacity is linked to an occupational illness or an accident at work, the worker is paid:
- a compensatory indemnity for the unexecuted discover;
- particular severance pay equal to twice the authorized severance pay, until extra favorable contractual provisions. Solely an abusive refusal of reclassification of the worker can exempt the employer from paying these indemnities;
- a compensatory allowance for country leave acquired however not taken on the date of termination of the contract;
- a brief incapacity indemnity for a most interval of 1 month till redeployment or dismissal.
Dismissal for incapacity is feasible within the following instances:
- the worker refused his proposed reclassification;
- the employer justifies the impossibility of reclassifying the worker;
- the opinion of the occupational doctor mentions that redeployment is unthinkable.