French Labour Law

Unfitness for Work Can Be Declared During Sick Leave (French Supreme Court, 10 December 2025, No. 24-15.511)

DAIRIA Law · 2026-09-15 · 8 min

Unfitness for Work Can Be Declared During Sick Leave (French Supreme Court, 10 December 2025, No. 24-15.511)

Unfitness may be declared while the employment contract is suspended for sick leave

In a ruling of 10 December 2025 (No. 24-15.511), the Social Chamber of the French Supreme Court (Cour de cassation) settled a recurring practical question: the occupational physician (médecin du travail) may validly declare an employee unfit for work during an examination requested by the employer (Article R.4624-31 of the French Labour Code), including while the employment contract is suspended for illness and despite the employee sending further sick-leave certificates.

This decision significantly secures the position of employers facing prolonged sick-leave situations, where the question of the employee’s fitness to return to work becomes pressing. DAIRIA Avocats analyses this ruling and its practical consequences.

The facts: an employee on sick leave summoned to a medical examination

An employee had been on sick leave for several months. Wishing to clarify the situation and consider the terms of a possible return to work, the employer took the initiative of contacting the occupational physician to arrange a medical examination, in accordance with Article R.4624-31 of the French Labour Code.

The occupational physician summoned the employee and carried out the examination. At its conclusion, the physician declared the employee unfit for his position. The employee challenged this finding of unfitness, arguing that he was still on sick leave at the time of the examination and that he had in the meantime sent further sick-leave certificates to his employer.

The Court of Appeal accepted the employee’s argument and held that the unfitness opinion had been issued irregularly, on the ground that the employment contract was suspended at the time of the medical examination.

The question put to the French Supreme Court was as follows: may the occupational physician validly declare an employee unfit during a medical examination requested by the employer while the employment contract is suspended for illness?

Article R.4624-31 of the French Labour Code provides that the occupational physician may be called upon by the employer or the employee, independently of periodic examinations, for a medical examination. This provision sets no condition relating to the actual performance of the employment contract.

Nevertheless, practice long hesitated over the possibility of summoning an employee on sick leave to a medical examination, some considering that the suspension of the contract prevented any such initiative by the employer. The question was all the more acute where the employee continued to send in sick-leave certificates, thereby expressing an intention not to resume work.

The ruling: appeal dismissed — unfitness may be declared during sick leave

The French Supreme Court dismissed the employee’s appeal and quashed the Court of Appeal’s decision. It laid down the following principle: the occupational physician may declare an employee unfit during an examination requested by the employer pursuant to Article R.4624-31 of the French Labour Code, regardless of the fact that this examination takes place while the employment contract is suspended and that the employee has sent further sick-leave certificates.

The Supreme Court noted that:

  • Article R.4624-31 of the French Labour Code allows the employer to request a medical examination of the employee at any time, without any condition relating to the actual performance of the contract;
  • The suspension of the employment contract for illness does not prevent the exercise of this prerogative;
  • The sending of further sick-leave certificates by the employee after the summons does not render the medical examination or the resulting unfitness opinion irregular;
  • The occupational physician is the sole authority competent to assess the employee’s fitness for the position, and this competence is not conditioned by whether the contract is suspended or being performed.

The context: a clarification awaited in practice

This decision fits within a case-law context marked by a degree of uncertainty as to the conditions for finding unfitness during sick leave.

The French Supreme Court had already accepted, in earlier rulings, that the return-to-work examination (visite de reprise) could take place while the contract was suspended, where it was organised at the employer’s initiative. The ruling of 10 December 2025 goes further, clearly affirming that Article R.4624-31 of the French Labour Code constitutes an autonomous legal basis enabling the employer to trigger a medical examination independently of any actual return to work.

In practice, this decision puts an end to a strategy sometimes observed whereby an employee sends successive sick-leave certificates in order to delay indefinitely the finding of unfitness and the implementation of dismissal-for-unfitness proceedings. The French Supreme Court affirms that the employer has the legal means to break this deadlock.

It should be recalled that the procedure for finding unfitness is subject to strict rules, in particular the obligation for the occupational physician to carry out at least one medical examination, to study the position and working conditions, and to consult with the employer and the employee on possible adjustments (Article L.4624-4 of the French Labour Code). These procedural requirements remain fully applicable, whether the examination takes place during or after the suspension of the contract.

Why this matters for employers: securing the management of prolonged leave

This ruling is of considerable practical interest for employers facing long-term sick-leave situations.

What the employer may now do

  • Request a medical examination at any time: the employer may call upon the occupational physician on the basis of Article R.4624-31, even where the employee is on sick leave;
  • Obtain a valid unfitness opinion: the opinion issued by the occupational physician in this context is fully valid and may form the basis of a dismissal for unfitness;
  • Not be blocked by successive certificates: the sending of further sick-leave certificates by the employee does not undermine the validity of the medical examination or of the unfitness opinion.

Precautions to observe

The DAIRIA Avocats team nevertheless recommends that employers observe several precautions:

  1. Formalise the request to the occupational physician: it is essential to keep a written record of the request made to the occupational physician on the basis of Article R.4624-31 of the French Labour Code;
  2. Summon the employee properly: the summons to the medical examination must be sent to the employee within a reasonable time and by a means that allows receipt to be evidenced;
  3. Comply with the unfitness procedure: the unfitness opinion must be issued in compliance with Article L.4624-4 of the French Labour Code (medical examination, study of the position, consultation with the parties);
  4. Initiate the search for redeployment: once unfitness is declared, the employer must seek redeployment consistent with the occupational physician’s recommendations before contemplating dismissal;
  5. Do not misuse the procedure: the request to the occupational physician must be motivated by a legitimate concern for human-resources management and not by a wish to dismiss the employee.

When faced with prolonged sick leave, the approach recommended by DAIRIA Avocats is as follows:

  • Assess whether it is appropriate to request a medical examination in light of the length of the leave and the information available on the employee’s state of health;
  • Contact the occupational physician in writing, expressly citing Article R.4624-31 of the French Labour Code;
  • Inform the employee of the summons and allow sufficient time to make arrangements;
  • Following the unfitness opinion, promptly initiate the search for redeployment and, where applicable, the dismissal-for-unfitness procedure.

FAQ: frequently asked questions on unfitness during sick leave

Can the employer require an employee on sick leave to attend the occupational physician?

Yes. Article R.4624-31 of the French Labour Code allows the employer to request a medical examination with the occupational physician. The employee is required to attend this summons. A refusal could constitute a breach of contractual obligations.

Can the employee challenge an unfitness opinion issued during sick leave?

Yes. The employee may challenge the unfitness opinion before the labour tribunal (conseil de prud’hommes) within 15 days of its notification (Article L.4624-7 of the French Labour Code). However, as confirmed by the ruling of 10 December 2025, the mere fact that the examination took place during the suspension of the contract does not constitute grounds for irregularity.

Do further sick-leave certificates prevent the unfitness procedure?

No. The French Supreme Court clearly states that the sending of further sick-leave certificates by the employee, after the medical examination, does not undermine the unfitness opinion issued by the occupational physician.

What time limit must the employer observe after the unfitness opinion before dismissing?

The employer has one month from the unfitness opinion to redeploy or dismiss the employee. Failing this, it must resume payment of salary (Article L.1226-4 of the French Labour Code).

Is the medical examination at the employer’s initiative the same as the return-to-work examination?

No. The return-to-work examination (visite de reprise, Article R.4624-31 et seq.) takes place upon the actual resumption of work after a leave. The medical examination at the employer’s initiative (Article R.4624-31) is a distinct prerogative that may be exercised independently of any resumption of work. It is this second legal basis that was used in the case discussed here.

This article is a legal commentary prepared by the DAIRIA Avocats team, a firm specialising in French employment law. It does not constitute personalised legal advice. For any individual situation, we invite you to consult a lawyer.

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