Introduction :
In the course of your business, the employment contract concluded with your employee may be affected by various periods of suspension, in particular sick leave. In this context, you may be confronted with so-called "convenience" sick leave, issued without any valid medical basis.
As an employer, you don't necessarily have to do nothing! There are a number of things you can do to assert your rights and challenge these unjustified stoppages.
Identifying the signs of complacent sick leave
First of all, before contesting a sick leave, it is crucial to be able to identify the signs that indicate that it may not be medically justified.
To do this, you can rely on signals such as :
- A high frequency of sick leave for the same employee: if an employee has a disproportionately high number of sick leave days compared with his or her colleagues;
- Inconsistencies in medical certificates: carefully check the medical certificate provided by the employee for inconsistencies, such as dates or information that do not correspond to the alleged illness;
- A change of doctor: a change of prescribing doctor or a succession of sick leave periods with different doctors may be an indicator;
- A change of specialist: 'surprising' changes of specialist may also be an indication of unjustified sick leave;
- A lack of medical follow-up or additional examinations: if you have access to this type of information, you can also check whether the employee has followed medical recommendations and whether additional examinations have been carried out to support the diagnosis;
- The employee's behaviour: this can also be an indicator, as can their attitude towards the occupational physician, for example.
Putting together the file
To contest a sick leave of convenience, the employer must gather solid evidence.
Your file may include all correspondence and documents relating to the sick leave:
- copies of all medical certificates,
- e-mails,
- notes of meetings,
- any written feedback from colleagues if necessary,
In the event of an accident at work or occupational disease claim, all these details may be sent to the CPAM if the occupational origin of the employee's illness is disputed.
What actions should be taken?
The employer may consider taking legal action to challenge the sick leave of convenience.
This can include:
- A second medical examination: this type of action has the advantage of being inexpensive. They are much less common nowadays, and have lost their value in that they almost never result in the suspension of employer's benefits, given the difficulty that medical examiners have in declaring certain unjustified stoppages;
- Reporting to the health insurance scheme: it is always possible to report unjustified stoppages to the health insurance scheme by sending a copy of the current stoppage together with a letter setting out the reasons why you consider the stoppage to be unjustified;
- Reporting to the Ordre des Médecins: if you have sufficient evidence of medical complacency, you can lodge a complaint with the Ordre des Médecins. They will investigate the conduct of the doctor in question. If the facts are proven, the complaint may lead to disciplinary action;
- Legal proceedings: in the most serious cases, the employer may consider filing a complaint against the doctor or employee for fraud or misrepresentation. This step should be taken with the utmost caution and in coordination with a lawyer.
Naturally, caution is called for in this type of case. You need to document your case properly and be in a position to provide proof of the alleged facts that will enable you to challenge the time off work.
The risks associated with discrimination on the grounds of health, or with taking the employee's state of health into account in order to assess your employee's case differently, can lead to significant and particularly costly litigation.
