How to Challenge an Unfitness Opinion by the Occupational Physician Within 15 Days
The occupational physician (médecin du travail) has just issued an unfitness opinion (avis d’inaptitude) and you disagree? Whether you are the employer or the employee, a specific remedy is available before the labour court (conseil de prud’hommes) — but be careful, the deadline is only 15 days. Once this deadline has passed, the opinion becomes final and binds everyone, including the judge. Here is how to effectively challenge an unfitness opinion.
What remedy is available against an occupational physician’s unfitness opinion?
The French Labour Code provides for a specific remedy before the labour court (conseil de prud’hommes) to challenge the medical opinions of the occupational health service that “are based on elements of a medical nature”: fitness opinions, unfitness opinions, and proposals for job adjustments. This remedy allows the judge to assess the merits of the opinion, if necessary with the assistance of a medical expert (médecin expert) appointed by the court.
This remedy is the only mechanism for challenging the medical qualification (fitness/unfitness) and the scope of the recommendations. No other remedy — in particular in the context of subsequent dismissal litigation — allows the validity of the opinion to be challenged once the deadline has expired.
What is the deadline for challenging an unfitness opinion?
The deadline is 15 days from receipt of the opinion by the party challenging it (and not from the date it was issued by the physician). This deadline has an absolute extinctive effect: once 15 days have passed, the opinion binds the parties and the labour court judge. It is no longer possible to challenge:
- The validity of the opinion.
- Its wording (including incidental errors such as the job title).
- The physician’s due diligence (compliance with Article R.4624-42).
The French Supreme Court (Cour de cassation) has confirmed this unambiguously: “once the fifteen-day deadline has passed, the occupational physician’s opinion binds the parties and the judge” (Cass. soc., 7 December 2022, no. 21-23.662; 25 October 2023, no. 22-18.303).
How can the date of receipt of the opinion be proven?
The certain date of notification is crucial since it triggers the deadline. The following constitute valid proof:
- The acknowledgement of receipt of a registered letter (LRAR).
- Hand delivery against a dated and signed acknowledgement (émargement).
- A reliable electronic acknowledgement with a timestamp.
Caution: hand delivery without a signature or acknowledgement does not trigger the deadline. The Cour de cassation has been very clear on this point (Cass. soc., 2 March 2022, no. 20-21.715). Likewise, a subsequent notification (by simple email or a second letter) does not retroactively cure the absence of a certain date at the time of the first delivery (Cass. soc., 4 December 2024, no. 23-18.128).
Practical tip for the employer: as soon as the opinion is delivered, have an acknowledgement document signed with the date, and keep it carefully. This document will serve as proof in the event of a dispute over when the deadline started to run.
Who can challenge the unfitness opinion?
The remedy is available to both the employee and the employer, each for their own grievances:
- The employee may challenge it if they consider that the unfitness is unjustified or that the physician’s recommendations are inappropriate.
- The employer may challenge it if it considers the opinion to be too restrictive (for example, where an exemption from the redeployment obligation was not granted although it would have been justified) or that the restrictions imposed are disproportionate.
How to bring the matter before the labour court?
The matter is referred to the labour court (conseil de prud’hommes), often through summary proceedings (référé) (an expedited procedure). The following are the typical claims to be made:
- Appointment of a medical expert to examine the employee and assess the merits of the opinion.
- Disclosure to the judge of the medical elements on which the occupational physician relied (subject to medical confidentiality).
- Confirmation or reversal of the unfitness opinion.
- Where applicable, a request for a new medical examination.
Important point: referral to the labour court does not suspend the procedure. The employer must continue to carry out the procedure in parallel: search for redeployment, consultation of the works council (CSE), and compliance with the D+30 deadline for resuming payment of salary.
What strategy should be adopted during the challenge?
Challenging the opinion creates a dual-track situation that the employer must manage rigorously:
Track A: the judicial remedy
- File the application within 15 days.
- Prepare the medical and factual elements for the expert.
- Await the labour court’s decision.
Track B: the redeployment procedure (in parallel)
- Continue the search for redeployment (unless a valid exemption applies).
- Consult the works council (CSE).
- Comply with the D+30 clock — resuming payment of salary is due even where a remedy is pending (Cass. soc., 10 January 2024, no. 22-13.464).
The key question is the timing of the decision to terminate: if the remedy has good prospects of success, it may be prudent to postpone notification of the dismissal until the labour court’s decision, so as to avoid dismissing on the basis of an opinion that might be reversed. In return, the cost of resuming payment of salary at D+30 must be anticipated.
What happens depending on the outcome of the remedy?
The opinion is confirmed
The procedure resumes its normal course: the employer continues (or concludes) the search for redeployment and, where applicable, proceeds with the dismissal for unfitness and impossibility of redeployment.
The opinion is reversed
The situation changes radically: there is no longer any unfitness, and therefore no legal basis for a dismissal for unfitness. The employer must reinstate the employee in their position (possibly adjusted) or, if a new examination is ordered, await its conclusions.
No remedy filed within 15 days
The opinion becomes final and irrevocable. The employer carries out the standard procedure: redeployment → works council (CSE) → offers → decision (effective redeployment or dismissal).
Which errors in the opinion can be challenged?
The D+15 remedy covers all medical aspects of the opinion, including:
- The unfitness qualification itself.
- The scope of the recommendations (restrictions, adjustments).
- The existence or absence of an exemption from the redeployment obligation.
- Material errors in the opinion (incorrect job title, questionable wording).
Pitfall to avoid: material errors must imperatively be challenged through the D+15 remedy. They can no longer be raised in subsequent dismissal litigation (Cass. soc., 25 October 2023, no. 22-18.303). Do not let the deadline pass by telling yourself that the error is “minor”.
Operational script: challenging an unfitness opinion in 4 steps
- Timestamp: record the date the opinion was issued AND the date it was received (with supporting evidence).
- Decide within 10 days: “Do we challenge it?” If so, refer the matter to the labour court and prepare the claims (expert, disclosure of the elements, new examination).
- Proceed in parallel: continue the redeployment and the works council (CSE) sequence, keeping a logbook with evidence.
- Synchronise: as soon as the labour court decision is issued, revise the trajectory — if the opinion is confirmed, continue; if it is reversed, recalibrate.
Documents to keep to secure the file
- Unfitness opinion (original version).
- Proof(s) of receipt (acknowledgement of receipt, signed acknowledgement, timestamp).
- Correspondence and emails exchanged with the occupational health service.
- Labour court application and any order issued.
- Expert report and conclusions of the medical expert.
- Logbook of the redeployment search.
- Works council (CSE) minutes.
- Redeployment offers and the employee’s responses.
- Dismissal letter or redeployment documents.
FAQ — Challenging the unfitness opinion
Is the 15-day deadline a clear-day deadline?
The deadline runs from the day the opinion is received. It is a period of 15 calendar days. The matter must be referred to the labour court within this period, failing which the opinion becomes definitively binding.
Can the opinion be challenged after a dismissal?
No. If the 15 days have passed without a remedy, the opinion is final. The employee will not be able to challenge the opinion in the context of subsequent dismissal litigation (Cass. soc., 7 December 2022, no. 21-23.662).
Must the employer continue the procedure during the challenge?
Yes. Referral to the labour court does not suspend the procedure. The employer must continue the redeployment search and comply with the D+30 deadline for resuming payment of salary.
What should be done if the date of receipt cannot be proven?
If there is no proof of a certain date, the 15-day deadline does not run. The employer has every interest in securing this proof from the moment of notification in order to avoid a late challenge.
Do you wish to challenge an unfitness opinion or secure your procedure? Contact the lawyers at DAIRIA for tailored assistance.
To go further, see our complete guide to dismissal.
The employer’s obligations regarding health and safety at work
The employer is bound by a safety obligation towards its employees, based on Article L.4121-1 of the French Labour Code. It must take the measures necessary to ensure the safety and protect the physical and mental health of workers, including:
- Actions to prevent occupational risks and hardship
- Information and training actions
- The setting up of an appropriate organisation and resources
These measures are based on the 9 general principles of prevention set out in Article L.4121-2: avoiding risks, assessing risks that cannot be avoided, combating risks at source, adapting work to the individual, taking account of the state of technical progress, replacing what is dangerous, planning prevention, prioritising collective protection measures, and giving appropriate instructions.
The Single Occupational Risk Assessment Document (DUERP), provided for in Article R.4121-1, is mandatory in any company from the first employee. It must be updated at least annually in companies with at least 11 employees, and whenever any significant change modifies working conditions.
Law no. 2021-1018 of 2 August 2021 strengthening prevention in occupational health expanded the obligations regarding the DUERP, in particular by requiring it to be kept for 40 years and filed in dematerialised form. See our employment law page for more details.
Managing unfitness: procedure and obligations
The employee’s unfitness, established by the occupational physician in accordance with the procedure set out in Article L.4624-4 of the French Labour Code, imposes a redeployment obligation on the employer (Article L.1226-2 for non-occupational unfitness, L.1226-10 for unfitness of occupational origin).
The procedure unfolds as follows:
- The occupational physician establishes the unfitness after a medical examination and, if necessary, a study of the position and working conditions
- The employer has a period of one month from the unfitness opinion to redeploy or dismiss the employee
- The redeployment search must be genuine and serious, covering all positions available within the company and the group
- The works council (CSE) must be consulted on the redeployment proposals (Articles L.1226-2 and L.1226-10)
- If redeployment is impossible (or if the occupational physician states that any continued employment would be seriously detrimental to the employee’s health), the employer may proceed with the dismissal for unfitness
The Cour de cassation held in one ruling that the employer cannot merely invoke the absence of an available position without justifying the concrete redeployment steps taken within the company and the group.
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