There are some situations where an employer can legitimately question whether an employee is actually sick, especially if the employee concerned has a grievance against the company. Under French law, a company can verify an employee’s state of health if, and only if, it makes top-up payments to the state-paid sick leave benefits so the employee still gets a certain level of their salary. In this case, the employer is entitled to seek a second medical opinion, at their own expense.
Decree no. 2024-692 of 5 July 2024 provides a brand new regulatory framework for the verification system, which already existed, although in practice it doesn’t make any radical changes. Under the new framework, an independent doctor, selected and paid by the employer, will either come out to the employee’s home or will ask the employee to come to their surgery for a medical check-up.
Does the employee have to go back to work?
Depending on the outcome of the “inspection” check-up, the independent doctor may decide that the employee’s sick leave is no longer warranted, or that it’s too long. However, that doesn’t mean the employee has to return to work.
What it does mean, though, is that the employer can stop their top-up payments to the employee’s state-paid sick leave benefits. So it does actually have an impact. Also, the independent doctor’s opinion is sent to the social security authorities (CPAM), which can then arrange for their own medical check-up of the employee, which could result in them deciding to stop the employee’s state sick pay.
What courses of action are available to an employee when a second medical opinion deems they’re fit to work?
The best course of action for the employee is to book another appointment with their general practitioner (GP) to get signed off work again! This is because the employee’s GP isn’t bound by the outcome of the independent doctor’s second medical opinion (Court of Cassation (Labour Chamber), 25 Feb 1998, no. 96-40397). And in many cases, the employee’s GP will just immediately issue a new sick note, irrespective of the independent doctor’s opinion.
Can the employer at least sanction the employee, especially if they don’t go to the second-opinion check-up?
If an employee’s sick leave is considered unwarranted, or if they refuse to go to a second-opinion medical check-up organized by their employer, this doesn’t constitute misconduct because the behaviour concerned has got nothing to do with the performance of the employment contract. Therefore, the employer can’t sanction or dismiss the employee (Court of Cassation (Labour Chamber). 22 Oct. 1997, no. 95-43.380).
So what’s the point of organizing a second-opinion check-up if the employee’s GP carries on signing them off work? There’s no point really, apart from perhaps serving as ammunition in any harassment case that the employee may file against the employer (Lyon Court of Appeal, 22 April 2011, no. 08/00690)! All in all then, an employer needs to carefully weigh up all the risks before going down the route of organizing a second-opinion medical check-up for an employee.