Source date: 2026-05-06
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Employee unfitness: Can it be established following a medical examination initiated by the occupational physician? Published on May 7, 2026 - Service Public / Directorate of Legal and Administrative Information (Prime Minister's Office)
Can the occupational physician declare an employee on sick leave unfit for work following a medical examination that they initiated themselves? The Court of Cassation has recently ruled on this matter.
An employee on continuous sick leave requested to see the occupational physician for an initial medical examination to assess their fitness to return to work. Following this examination, unable to determine the employee's fitness, the occupational physician conducted a job analysis, reviewed working conditions, and consulted with the employer.
Fifteen days later, after informing the employer, the occupational physician summoned the employee for a further medical examination, at the end of which they declared the employee unfit for any position and stated that maintaining the employee in any role would seriously harm their health.
The employee was dismissed by their employer the following month due to unfitness and the impossibility of reassignment. The employee brought the case before the labor court (Conseil de prud'hommes), arguing that their dismissal was based on an irregular unfitness opinion because it resulted from a medical examination organized by the occupational physician.
The labor court ruled in favor of the employee, recognizing the dismissal as lacking real and serious cause.
The employer challenged this decision before the Court of Appeal, which ruled in their favor. According to the Court of Appeal, the occupational physician had followed the procedure laid down in the Labor Code.
The employee appealed to the Court of Cassation. They argued that only a medical examination requested by the employee while on sick leave could end the suspension of the employment contract (and lead to a finding of unfitness). Therefore, the unfitness opinion issued during the second visit, which they had not requested, was irregular in their view.
Can the occupational physician validly declare an employee on sick leave unfit for work following a medical examination not requested by the employee?
Service Public answers:
In its decision of March 11, 2026, the Court of Cassation recalls that the occupational physician declares a worker unfit for their position after conducting a job analysis and consulting with the employee and the employer. No adjustment, adaptation, or transformation of the current position must be possible, and the employee's state of health must justify a change of position.
It also recalls that a worker may request a medical examination when they anticipate a risk of unfitness. The occupational physician may also organize a medical examination themselves for any worker requiring one.
In light of these elements, the Court of Cassation considers that unfitness can be established following an examination initiated by the occupational physician, provided that the physician:
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carried out at least one medical examination of the person concerned (accompanied, where applicable, by additional tests, allowing for discussion on measures for adjustment, adaptation, or transfer, or the need to propose a change of position);
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carried out or had carried out a job analysis;
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carried out or had carried out an analysis of working conditions within the establishment;
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engaged in communication (by any means) with the employer.
The Court of Cassation thus upholds the reasoning of the Court of Appeal, considering that the employee's unfitness had been properly established. The occupational physician may therefore declare an employee on sick leave unfit for work following a medical examination they initiated.
Consequently, the employee's dismissal is based on a real and serious cause. Their claims are therefore rejected.
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Source: Service-Public professionals