As a reminder, a “return to work” medical appointment is a compulsory appointment that must be organized as soon as possible after the end of an employee’ sick leave and at the latest 8 days following the return to work after:
- an extended sick leave (more than 60 days)
- 30 days sick leave for an occupational accident
- a work-related sick leave
- a maternity leave
In a recent decision from the French High Court of Justice, it has been reminded that the employer must take the initiative of requesting such medical examination from the occupational health service right after the end of the employee’ sick leave.
In this decision, the judges clarify that the employee does not have to actually return to work before the employer organizes the compulsory medical appointment.
If the employer omits to arrange this medical appointment, this constitutes a breach of the employer’s safety obligation, giving rise to a right to compensation:
- the employee can claim for damages;
- and the employee can make a constructive dismissal claim before the courts. If awarded, this entitles the employee to a severance indemnity, paid leave indemnity and additional compensation for unfair dismissal.
In practice, as soon as the employer is informed of the end of the sick leave after an extended absence due to the employee’ state of health, it should arrange a medical appointment with the occupational health service on the theoretical first day of the employee’s return to work (i.e. after the end of the employee’s last sick leave) and at the latest within eight days following this date.
It is important to bear in mind that, as long as the appointment has not been organized, any work accident or health issue that the employee may have in the 8 days following his/her return could also have serious consequences in terms of the employer’s liability. The employee would therefore be justified in refusing to work until she has seen the physician.
To summarize, the only obligation on the employee is to be available to the employer for the occupational health appointment, rather than actually returning to work.
Should you have any questions, please do not hesitate to contact us.