top of page

What about the obligations of employees on sick leave?

Private detective Toulon - Abusive sick leave - Sick leave fraud - Employee obligations during sick leave
PROCAP DETECTIVE TOULON - The employee's obligations during a work stoppage

Work stoppage in a few words

Work stoppage is a period during which the employment contract is suspended and during which the employee is justified, due to his state of health, in being absent from his workplace and interrupting the performance of his contract. of work. Legally, work stoppage is a

“medical prescription” certifying that the employee's state of health and physical condition does not allow him to execute his employment contract or continue his professional activity. The work stoppage gives rights to the employee, but it also entails obligations.

The work stoppage can be issued for different causes, which constitute, so to speak, sub-parts of it. It can be issued:

  • Due to illness : strictly speaking, this is “sick leave.” » This is granted when the employee suffers from an illness preventing him from carrying out his activity normally or from going to his place of work;

  • Due to a “work accident” : work leave due to an accident is issued when the stoppage is caused by an accident occurring during the exercise of professional activity or at the workplace;

  • Due to an “occupational illness” : work stoppage for occupational illness can also result from an illness caused by professional activity or occurring during this activity.

In the event of work stoppage, the employee can claim, under certain conditions (number of hours worked, duration of stoppage, etc.) the payment of daily social security benefits (IJSS) to compensate for loss of salary , which are paid, depending on the sectors of affiliation, by the Caisse Primaire d’Assurance Maladie (CPAM) or the Caisse de Mutualité Sociale Agricole (MSA). He may also receive, under conditions provided for in the contract or by the Collective Agreement, in whole or in part, and for a certain duration, additional compensation paid directly by the employer.

The employee's obligations during a work stoppage

The employee on sick leave is bound by a set of obligations, these are set out in article L323-6 of the Social Security Code . They cover the following elements:

  • Compliance with medical prescriptions;

  • Compliance with authorized exit times;

  • Availability for health insurance checks;

  • Compliance with formal obligations (establishment of medical certificate, information of employer and social security organizations)

  • Unauthorized interruption of professional activity

  • The return medical examination

Failure to comply with these obligations can result in a very wide range of sanctions which can range from the simple suspension or reduction of daily health insurance benefits, to dismissal, or even criminal sanctions if the judgment is fraudulent (false declaration, scam).

Proof of your inability to work with a “medical certificate”

The employee on sick leave must first have his state of health, and consequently his incapacity to work, noted by a health professional. The work stoppage, being a medical prescription, it is up to the doctor to note, decide and establish it ( art. L321-1 of the Social Security Code ). Otherwise, this can lead to two consequences: the non-payment of daily allowances or the maintenance of the employer supplement, and the risk of dismissal due to the fact that the employee finds himself, due to the absence of a certificate, in a situation of absence unjustified.

Obligation to inform the employer and the health insurance fund

The employee on sick leave is required to inform the employer of the reason for his absence as quickly as possible, by any means: simple letter, LRAR, email, text message, telephone call. The arrangements for informing the employer are generally specified in the employment contract or by the Collective Agreement. Although informing the employer is an obligation, there is no legal deadline for this. As a general rule, it is customary for the deadline to be 48 hours from the day of absence. However, the employee must submit the sick leave certificate to the employer and the health insurance fund within 48 hours ( art. R321-2 of the Social Security Code ). This is a legal obligation. The obligation to inform the employer and transmit a medical certificate to the employer and the health insurance fund also applies in the event of extension of the initial sick leave. Most often, the doctor carries out the teletransmission.

Submit to a medical check-up

The employee on sick leave has the obligation to submit to a medical check-up from health insurance, and if the agreement or employment contract provides for it, to a so-called employer check-up, i.e. -say at the initiative of the employer. In fact, there are two types of medical check-up to which an employee on leave may be subject during a work stoppage: a control visit can be carried out at the employee's home either at the initiative of Social Security or at the request of the employer. The objective of the medical check-up is to verify that the employee's state of health justifies the stoppage and that the employee complies with medical prescriptions (exit schedules, presence at home, non-occupation of the job, etc.), and where applicable check the correct receipt of social security benefits. If the work stoppage is unjustified (absence from home, recovery, unauthorized outings, exercise of an unauthorized activity, etc.), the health insurance organization may order the suspension of the payment of daily allowances, order the return to work, or even in certain cases, notably of obvious fraud or false declaration, request reimbursement of undue sums accompanied, where applicable, by financial penalties and criminal prosecution. The employer is notified of the results of a health insurance medical check-up and may, in the event of an unjustified stoppage, suspend the payment of additional compensation that it pays to the employee.

The employer can also request a second medical examination at the employee's home by the doctor of his choice. This counter-inspection is called "the employer's counter-visit", and is intended to verify whether the employer is indeed required to pay any additional compensation payable. If the stoppage is unjustified, either because the employee does not respect the working hours restrictions, is absent, or has resumed an activity, the employer is justified in suspending the payment of additional compensation, or even imposing sanctions against of the employee who does not meet his obligation of loyalty (by working for another company, or a competitor, during his sick leave for example). The doctor requested by the employer is required to inform, within 48 hours, the social security organization which will be able to make any useful decisions: suspension of payment of daily allowances, medical re-examination of the employee, request for reimbursement, financial penalties or prosecutions. criminal penalties in the event of proven fraud.

Respect medical prescriptions, in particular authorized exit times

During a work stoppage, the employee is required to respect medical prescriptions regarding exit authorizations; he cannot either leave the territorial jurisdiction of the insurance fund to which he is attached without authorization from the Primary Fund and medical proof. Likewise, in the event of a change of address, accommodation with a third party, or travel for medical reasons, including travel for health reasons, it is required to report and justify it to the social security body. . Exit times must be mentioned in the work stoppage. Several scenarios can arise:

1st CASE: Outings authorized, but with time restrictions (most common case)

Most work stoppages allow employees to leave their homes. However, employees must respect compulsory attendance times at their home. These time slots are between 9:00 a.m. to 11:00 a.m. and 2:00 p.m. to 4:00 p.m. This provision is applicable throughout the week, including weekends. Apart from these specific times called “time restrictions”, where employees must be present at home, they are completely authorized to be absent from home.

2nd CASE: Total ban on going out (least frequent, even rare case)

Another scenario. The doctor may decide that the employee is not authorized to leave his home. In this case, the employee must stay at home for the entire duration of their work stoppage, even during exit authorization hours. This type of shutdown is extremely rare; it may be prescribed by the doctor if the patient suffers from a contagious disease (example: Covid-19).

3rd CASE: Outings authorized without time restrictions (frequent case)

Finally, the doctor can also decide that the work stoppage is without time restrictions and authorize the employee to be away from home at any time of the day. Although different reasons can motivate this decision, it is most frequently taken by the doctor in cases of depression or professional burn-out.

Refraining from carrying out professional activity and respecting the obligation of loyalty

Unless authorized by a medical opinion, the exercise of a paid or unpaid activity during work stoppage is strictly prohibited and may be considered as fraud in social benefits and a cause of disloyalty towards the employer, being able to justify the dismissal of the employee for misconduct. Although the work stoppage constitutes a “suspension of the employment contract”, the obligation of loyalty ( Article L1222-1 of the Labor Code ) remains valid including during the work stoppage. An employee who takes advantage of his absence to carry out a professional activity commits a fault, which can be described as serious, or even serious, if the activity is carried out on behalf of another competing employer.

However, the following does not constitute a violation of the work stoppage obligations and is not considered as the exercise of a professional activity:

  • To carry out a volunteer-type activity during the work stoppage

  • To provide occasional domestic help

  • To carry out a non-profit activity on your own account

  • Undertake professional training, provided that it has been previously authorized by a doctor.

Return to work after the shutdown

Except for an extension of the initial stoppage justified by a certificate, failure to return to work at the end of the stoppage, or a late resumption, may constitute a real and serious cause for dismissal, or even serious misconduct if the employer provides proof of damage caused by the employee's failure to return to work. When the work stoppage exceeds 1 month, the employee is required to have a medical examination, called a “resumption medical examination”. This must take place no later than 8 days after returning to work. During the return visit, the occupational physician decides to give a favorable medical opinion for resumption of activity or an opinion of incapacity depending on the state of health of the employee and the conditions of resumption. In the event of an extension of the work stoppage, the employee must notify his employer and send him a new medical certificate prescribing an extension of the work stoppage within the same time frame as the initial stoppage. In the event of a resumption, the employee is required to immediately inform the social security organization on which he or she depends of any resumption of activity (Article L323-6 of the Social Security Code).

What about dismissal during a work stoppage?

During a work stoppage, the employee benefits from protections guaranteed by law. In principle, an employee cannot be dismissed for reasons of health or on the basis of sick leave, as it is discriminatory ( art. L. 1132–1 of the labor code ) , nor be forced to return to work. An employer cannot invoke the employee's state of health as a reason for dismissal, nor call into question, by any means whatsoever, the work stoppage. However, situations exist in which dismissal can take place, including against an employee on leave.

This is particularly the case of repeated or excessively long sick leave, which is incompatible with the interests of the company. Or those where the employer justifies that the employee's absence causes significant disorganization to the company; or that its replacement is made necessary by the economic imperatives of the company. The same applies in the event of the employee's inability to return to work; again his dismissal is authorized.

Sick leave does not constitute an obstacle to dismissal either, if a disciplinary procedure had been initiated before the start of the sick leave, nor in the face of dismissal for economic reasons. The dismissal of an employee on sick leave is also possible if he or she does not respect the obligations inherent to the sick leave, or in situations of fraud. For example, an employee who fails to inform the employer of the reason for his absence or does so late is in a state of unjustified absence. He commits an error which could, if necessary, justify his dismissal; the same applies to the employee who falsifies sick leave, who fakes an illness, who obstructs the inspection visit, or who pursues an unauthorized professional activity, and even more so on behalf of a competitor. .


Commenting has been turned off.
bottom of page