The French Labour Code and the collective bargaining agreements stipulate many requirements concerning mandatory medical examinations within companies. Recent case law has supplemented the applicable provisions in law and collective agreements.

The medical examination upon hiring

Every employee is required to submit to a medical examination. Typically, this would happen before s/he was hired, though it may take place as late as the end of the trial period. This examination, [since it] provides the opportunity to see whether the employee is suffering from a disease that may be dangerous for other employees, to ensure that s/he is fit medically for the planned position, to propose individual work-place accommodations or even to notify the employee about the risks associated with the position and to train her/him in prevention methods she could apply.

The Cour de Cassation ruling of 12 January 2016

France’s highest appeals court handed down a significant ruling pertaining to the employer’s responsibility in respect of the medical examination. The lower “police court,” then the Appeals Court penalised the managers of a telephone marketing company who had not had new employees undergo a medical examination at the time of the hiring.
The Cour de Cassation upheld the appellate ruling although the defendants did explain:

– That the company had fulfilled all the measures required to comply with the provisions pertaining to the hiring medical examination: registering the pre-hiring declaration (“DPAE”) with URSSAF which automatically causes URSSAF to send a notice to the work-place doctor, who must then call the employee to an appointment (Art. R.1221-2 of the Labour Code);
– That it was physically impossible to have the examination done prior to the end of the trial period: given the length of the contracts, they had already terminated by the time the work-place medical office was able to call the interested parties for interviews.

This very strict case law risks generating a significant dispute concerning file processing times by work-place doctors. Consequently, it would be sensible to plan for the hiring medical examinations to happen as soon as possible.

The periodical medical examination

Each employee is required to pass a medical examination at least every 24 months, to ensure that his or fitness for the position is maintained. Furthermore, the employee or the employer is able to ask at any time for a medical examination to be done.

It should be noted that the time required by these medical examinations, including the supplementary examinations, is taken out of the employees’ working hours, and no withholding of salary can occur, or they are paid as normal working time in those cases where the examinations cannot take place during working hours.

Furthermore, some employees have an entitlement to special examination as provided in the applicable collective bargaining agreement or according to the procedures to be set by decree (yet to be produced). This is the case for pregnant employees, who have the right to permission to be absent from work to attend the seven mandatory medical examinations of the prenatal period: the first must take place prior to the end of the first trimester of pregnancy, and the following ones take place every month starting from the first day of the fourth month, right up until delivery. The spouse of the pregnant employee, including a partner under a PACS and a civil-law spouse, is also entitled to permission to be absent from work to attend three of these examinations.

The back-to-work medical

An absence from work due to childbirth or a work-related illness, regardless of its length, or an absence of at least thirty days due to an accident at work, or a non-work-related accident or illness, requires the employer to refer the employee to the workplace doctor to provide the employee with a medical examination within one calendar week of his/her return to work. If the medical examination is organised solely at the initiative of the doctor, it does not count as a back-to-work medical and the employee is therefore entitled to refuse to attend it. Conversely, the employee who does not attend the medical examination organised by the employer commits an offence that is subject to disciplinary measures.

The work-place doctor must be notified of any absence from work of less than thirty (30) days due to a work-place accident; s/he will then assess the usefulness of a medical examination and may recommend preventative measures.

The purpose of this examination is to check that the employee is fit to resume his position, to recommend work-site accommodations, an amendment to a position or the transfer of the employee, and to examine the proposals for work-site accommodations, an amendment to a position or a transfer done by the employer pursuant to recommendations issued by the work-place doctor. Only the work-place doctor has the authority to assess the medical fitness of the employee for his/her job. Consequently, the advice provided by a treating physician or the social security doctor has no legal status.

The penalties

Infringements of the rules pertaining to work-place medicine are penalised as a class 5 offence. In the case of repeat offence, the penalties are increased (to up to four months of prison) and the employer may be forced to post the ruling on the doors of his premises.

Furthermore, the employer may be found guilty of civil liability, and his breach of his requirements could lead, in fact, to a tort against the employee who has the right to sue. For instance, the employee may formally terminate his/her employment agreement solely at the employer’s fault.

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