Obligation to reclassify an unfit employee: have you considered offering telecommuting?
The Social Division of the Cour de Cassation (French Supreme Court) recently ruled that an employer whose employee has been declared unfit for work may not refuse to reclassify that employee in a teleworking position on the grounds that the company has not introduced teleworking, even though the nature of the employee’s duties allows it, and the occupational physician recommends it (Cass. Soc. March 29, 2023 no. 21-15.472).
This is an opportunity to review the employer’s general obligations in terms of reclassification, and the social benefits this decision entails.
Notice of unfitness: what are the employer’s general obligations in terms of reclassification?
As a reminder, unfitness for work, which can only be recognized by the occupational physician, is declared when the employee’s state of health has become incompatible with the duties they perform, and when no accommodation or adaptation of the position can be envisaged.
Whether or not the employee’s unfitness for work is due to an occupational cause, the law requires the employer to find a solution for reclassification.
In its ruling, the Cour de cassation recalls that when an employee is declared unfit for work, the employer is obliged to offer them another job suited to their abilities, and as comparable as possible to the job they previously held. The job offered must be available on national territory, within the company or the group to which the company belongs.
The employer is also obliged to take into account the opinion of the CSE, the written conclusions of the occupational physician and any indications the latter may give concerning the employee’s ability to carry out one of the tasks existing in the company, or the employee’s aptitude to benefit from training to prepare them for a suitable position.
Consequently, the employer can only dismiss an employee when it is clear that no suitable position is available, when the occupational physician’s opinion indicates that the employee is unsuitable or, under certain conditions, when the employee refuses all offers of reclassification.
In addition, when the employer is unable to offer the employee another job, they must inform the employee in writing of the reasons preventing reclassification.
Obligation to reclassify: should the employer consider teleworking?
In the above-mentioned case, an employee working as an assistant coordinator for a multidisciplinary team at an occupational health center was declared unfit for her job by the occupational physician.
In the unfitness report, the doctor specified that she “could occupy a part-time administrative position without commuting, working from home, with appropriate adjustments to the workstation”.
Despite these recommendations, the employer dismissed her for unfitness, claiming that he had no suitable position available, that he was not obliged to create a position specifically adapted to her abilities, and that he was not obliged to reclassify her in a telecommuting position, even though this type of organization had not yet been implemented in the company.
He also argued that the employee’s activity was incompatible with a telecommuting organization, in view of the obligation of medical confidentiality to which she was subject.
As a result, the employee contested her dismissal, requesting that it be deemed without real and serious cause.
In its response, the Cour de cassation ruled in favor of the employee, pointing out that it is the employer’s responsibility to offer, in good faith and taking account of the occupational physician’s recommendations and indications, another job suited to the employee’s abilities, and as comparable as possible to the job previously held.
In addition, we note that it did not accept the argument that the employer was unable to reclassify an employee for a telecommuting position, since this form of organization had not yet been implemented within the company.
It also noted that the tasks entrusted to the employee, which did not require access to medical files, were likely to be carried out on a telecommuting basis.
In this respect, it specified that the adaptation of a telecommuting position could simply result from an amendment to the employment contract.
The judges therefore concluded that the employer had not faithfully fulfilled its obligation to reclassify the employee.
What’s at stake in this decision?
While this decision bears witness to the development of this new form of work, it also reflects the desire to provide greater job security, particularly for people experiencing professional difficulties linked to their state of health or disability.
The reclassification process, in the same way as workstation reorganization, adaptation and transformation, is an essential means of keeping employees who have been victims of accident or illness in employment.
The new emphasis on teleworking as part of the reclassification obligation represents a host of additional opportunities for employees declared unfit to remain in employment.
This decision should be seen in the context of recent rulings on teleworking (link to article “Teleworking: beware of checks on working hours and compulsory rest periods”).
We invite you to make an appointment with us, so that we can offer you appropriate support. Our meetings can be held face-to-face or by videoconference. You can schedule an appointment directly online at www.agn-avocats.com.
AGN AVOCATS – Employment Law Department
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