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What’s the difference between inaptitude, disability and incapacity?

These notions of employment law and Social Security law are often confused. Here’s a simple explanation of the different concepts.

What is inaptitude?

Inaptitude is an employment law concept.

It is the occupational physician who declares an employee unfit for work.

In principle, a notice of unfitness triggers the employer’s obligation to find a solution for reclassifying the employee, unless the occupational physician expressly grants a dispensation mentioned on the notice.

This means that the employee can no longer occupy their current position within the company, but does not necessarily prevent them from finding an equivalent position in another company.

Inaptitude may originate from an occupational or non-occupational cause.

If the inaptitude is work-related, the employee is entitled to claim temporary compensation for inaptitude during the dismissal procedure.

The employee may also apply to the Industrial Tribunal (Conseil de Prud’hommes) for damages for the employer’s failure to comply with the obligation to ensure safety at work, and in certain cases to the Social Division of the Tribunal Judiciaire for recognition of the employer’s inexcusable fault, in order to obtain additional compensation.

What is disability?

Disability, on the other hand, is a notion of Social Security law.

It is possible to be recognized as disabled when one’s capacity to work and earn a living is reduced by at least 2/3 (66%) as a result of a non-work-related accident or illness.

It then entitles the beneficiary to a temporary disability pension, which can be modified, suspended or withdrawn as the beneficiary’s health changes.

The Caisse Primaire d’Assurance Maladie (CPAM) or the Mutualité Sociale Agricole (MSA) can classify a policyholder as disabled.

There are several degrees of disability.

First category disability may be granted when the insured is still capable of gainful employment.

Second category disability may be granted when the insured is absolutely incapable of exercising any profession.

Third-category disability may be granted when the insured is absolutely incapable of exercising a profession, and is also obliged to have recourse to the assistance of a third party to carry out the ordinary acts of life.

In the event of disagreement with the decision handed down by the Social Security organization, you may appeal to the Commission Médicale de Recours Amiable (CMRA) within 2 months of being notified of the decision.

The CMRA has 4 months to reach a decision. In the event of rejection, or in the absence of a decision within this timeframe, the policyholder may appeal to the Pôle Social of the Tribunal Judiciaire within 2 months.

Recognition of disability does not automatically imply unfitness for work, which is the responsibility of the occupational physician, not the Social Security organization.

When the employee informs the employer of being classified as 2nd or 3rd category disabled, a return visit to the occupational physician must be organized.

What is incapacity?

Incapacity is also a notion of Social Security law.

It concerns victims of an accident at work, who may be entitled to compensation if their ability to work is permanently reduced as a result of the accident.

The social security organization (CPAM or MSA) determines a permanent incapacity rate (IPP), which determines the level of compensation.

Depending on the degree of permanent incapacity, this compensation is paid in the form of a lump sum or a life annuity.

Both the insured and the employer may contest the decision of the social security organization setting the rate of IPP with the CMRA (Commission Médicale de Recours Amiable), within 2 months of notification of the decision.

In the absence of a positive response from the Commission de Recours Amiable, or in the event of an implicit rejection decision, the decision may be contested again before the Pôle Social of the Tribunal Judiciaire, under the same conditions as above.

If the insured has obtained a favorable decision on incapacity, an action for compensation can in principle be brought before the Conseil de Prud’hommes, and possibly before the Pôle Social of the Tribunal Judiciaire.

As an employee, it’s important to be properly supported when you find yourself in one of these situations. We encourage you to consult a lawyer for advice tailored to your situation, especially as this may have an impact on your retirement pension or unemployment benefits.

Employers also need to be vigilant in order to avoid procedural errors and limit the risk of litigation, particularly when the inaptitude has a professional origin, as the amount of damages can be considerable.

Our meetings can be held face-to-face or by videoconference. You can schedule an appointment directly online at

AGN AVOCATS – Employment Law Department

09 72 34 24 72

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