At the end of an occupational illness, maternity leave, a work stoppage of at least 30 days for illness or accident at work, the employer is obliged to organize a follow-up medical examination. .
The occupational physician is then the only one able to decide on the possible incapacity of the employee or to impose restrictions on the resumption of the employee. In this case, the employer must comply with all the medical prescriptions.
Two recent decisions illustrate the particular attention that should be given to these triangular relationships (occupational physician / employer / employee) and the risks they can present:
1) Failure to comply with the recommendations of the occupational physician may constitute moral harassment
Following several work stoppages, the occupational physician declares an employee fit, but issues reservations. He initially recommended limiting the carrying of heavy loads, then decided to stop all carrying heavy loads for this employee.
The employee was dismissed for serious misconduct. He contested his dismissal on the grounds that he had been the victim of moral harassment and thus requested the payment of compensation before the Labor Council. He indicates that his employer has entrusted him in the usual way, in defiance of the prescriptions of the occupational physician, tasks beyond his physical capacities in view of his state of health and thus endanger his state of health.
For judges, this highlights the existence of elements suggesting moral harassment. As the employer did not prove the existence of objective elements unrelated to any harassment, the employee won his case.
This solution is in line with the decisions already issued sanctioning the failure to observe the recommendations of the occupational physician.
2) Be careful, however, of any changes to employment contracts
Assignment to a workstation in accordance with the recommendations of the occupational physician does not however authorize the employer to modify the employee’s employment contract without his agreement.
Thus, the Toulouse Court of Appeal ruled that the transfer of an employee who has been the victim of an accident at work to a new position compatible with the medical restrictions concerning him, but located in a different geographical area, constitutes, in the absence of a mobility clause, a modification of the employment contract of the employee requiring his agreement.
In this case, the dismissal of the employee who refused to return to his new place of work must be considered without real and serious cause.
Contact us
The Social Pole team headed by Emmanuelle DUGUE-CHAUVIN is of course at your disposal to answer your questions relating to this issue.
Emmanuelle DUGUE-CHAUVIN
Associate lawyer specializing in social law
In charge of the Social Pole and the Occupational Health and Safety Pole within EMO AVOCATS
[email protected]
Camille LAMBERT
Lawyers
Social pole of the firm EMO AVOCATS
[email protected]
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