What are the rights and obligations of an employer and an employee during sick leave in France?
When an employee goes on sick leave, the employer is subject to several obligations:
- At the beginning of the leave
- Upon the employee’s return to work
- The payment of additional compensation
However, the employer also has rights during an employee’s sick leave.
Similarly, the employee on sick leave is entitled to daily allowances paid by the social security, including sometimes the possibility of maintaining the full salary from a supplement paid by the employer. Throughout the duration of the sick leave, the employee must rigorously fulfill his obligations, at the risk of facing penalties (such as losing all or part of the financial support for the sick leave).
I – The employers’ obligations and rights
1. Employers’ obligations
At the beginning of the sick leave:
When the employee has sent the section n°3 of his sick leave form delivered by his doctor (within two days – 48 hours – since the interruption of his activity), the employer must immediately establish a salary certificate.
This certificate will allow the payment of his daily allowances by the social security. It must be transmitted without delay according to one of the following three options:
- Through net-entreprises.fr
- Through certified payroll software
- By mail, by sending Cerfa n°11135*04 to the employee’s primary social security.
Upon the employee’s return:
When the employee returns to work, the employer must report it:
- On the monthly nominative social declaration (DSN) if the return to work occurs on the date provided by its sick leave notice.
- Or in an event-based nominative social declaration (DSN) if the return to work occurs before the date provided by sick leave notice.
If the employee’s return to work date has been postponed, the forecasted end date of the leave entered in the payroll software should be modified.
Following sick leave for occupational disease, or when the leave for illness or accident at work has resulted in the employee’s absence for at least 30 days, the employer must arrange a medical examination upon its employee’s return to. This examination must take place not later than eight days following the employee’s return to work.
Possible additional payment of compensation for sick leave:
The employer is obliged to pay the employee’s additional compensation to the compensation received from Social Security if the following conditions are met:
- One year of seniority in the company
- The employee’s medical certificate was sent within 48 hours since the moment he left work (except in exceptional circumstances)
- Receives daily allowances paid by Social Security and he is treated in France or in one of the member countries of the European Economic Area (EEA).
Unless there is a more favorable collective agreement, the additional compensation must be paid from the eighth (8th) day of sick leave.
2. Employers’ rights
When the employer pays additional allowances, he can ask to have the employee undergo a medical check-up.
The purpose of this visit, which takes place at the employee’s home, is to check that:
- The employee respects the hours of prohibition of exit provided for by the sick leave notice.
- To ensure that the employee’s state of health complies with the sick leave and its duration.
This check-up can be carried out by any doctor specializing in this type of inspection and it is not necessary to notify the employee.
The absence at the control or the refusal of control is a valid reason to justify stopping the payment of the additional allowances by the employer.
Clarification: It is not possible to question an employee about the reason behind their sick leave.
Sick leave and termination: the law provides for the nullity of the dismissal due to the state of health of an employee. However, the fact that the employee is off work for a long period does not prohibit the employer from dismissing him when the prolonged absence, or even the repeated absences that it implies, leads to disturbances in the good operation of the company’s’ activities and requires the replacement of the missing employee on sick leave.
II – The employees’ rights and obligations
1. The obligations of the employee on sick leave towards its employer
Inform the employer and justify the sick leave:
The employee who gets ill and who, as a result, cannot provide work is required to inform his employer within 48 hours. The rules to be followed are most often specified by the collective agreement and/or by the employment contract.
In the absence of conventional or contractual provisions, it is customary for the employee to notify his employer within 48 hours.
This information can be given orally or preferably in writing.
The employee absent for illness must justify their absence by sending a medical certificate of sick leave. He must also justify each possible extension of his sick leave by sending the doctors’ notes to his employer.
Thus, the employer who becomes aware of the employee’s illness (for example by telephone or because the employee, indisposed, had requested, and obtained authorization to leave his place of work) cannot terminate the employment contract by relying on non-compliance with formalism by the employee.
Submitting to a medical counter-examination by the employer:
In return for maintaining the salary during the absence due to illness or accident, some collective agreements provide the possibility for the employer to have a medical counter-examination of sick leave carried out. As it has been developed further above, the employer’s medical check-up is only intended to verify whether the employer is indeed required to pay any additional compensation payable to the employee and cannot allow the employee to be sanctioned.
Refrain from carrying out another professional activity:
The employee who is absent due to illness cannot take advantage of this absence to carry out another professional activity. In addition, the fact that the employee works during his leave proves that his unavailability is not real.
Failure to comply with this prohibition justifies dismissal. It may constitute serious misconduct.
On the other hand, it does not constitute serious misconduct, nor even a real and serious cause for dismissal, if the employee is:
- To carry out voluntary activities during sick leave
- To provide occasional help in the context of domestic assistance
- To carry out a non-profit activity on their own account.
Trips during sick leave:
The Court of Cassation ruled that if an employee takes a “holiday” trip during a sick leave, it does not constitute a breach of the obligations of the employment contract (suspended during the sick leave) and could not in particular justify a dismissal, since the employee had not committed any act of disloyalty (cass. soc. June 16th 1998).
However, the violation of social security rules (requiring in principle that the employee rests at home) can only lead to the cancellation of the payment of daily social security allowances and, where applicable, of additional allowances due by the employer after a possible counter-visit (see above).
At the end of the sick leave:
The employee must return to work at the end of his sick leave. Not coming back on time or at all, and without justifications, can constitute a real and serious reason for dismissal.
In the event of prolongation of the illness, the employee must inform his employer and send him a new medical certificate prescribing an extension of the sick leave within the same deadline as the initial leave.
The employee whose absence for illness lasted at least 30 days, must undergo a medical examination upon his return to work and at the latest within 8 days. It is carried out by the occupational physician. This visit must also be organized in the event of repeated absences of an employee for health reasons.
2. The right to compensation by Social Security
The daily allowances are paid by the Social Security to compensate for the salary during the sick leave. They are collected after a waiting period of 3 days. They are calculated based on gross salaries and paid after the file has been processed by the social security, then every 14 days on average.
The statements of daily allowances also open the pension rights.
The conditions to be met to be compensated:
- If the sick leave is less than 6 months: the employee must have worked at least 150 hours over the past 3 months or 90 days prior to the sick leave (or have contributed on a salary at least equal to 1,015 times the amount of the hourly minimum wage during the last 6 months prior to the sick leave).
- If the work stoppage is longer than 6 months: the employee must have been affiliated with the Health Insurance for at least 12 months on the date of the sick leave. Must also have worked at least 600 hours during the last 12 months or 365 days prior to the sick leave (or having contributed on a salary at least equal to 2,030 times the amount of the hourly minimum wage during the 12 months prior to the sick leave).
- In addition, special conditions are provided for seasonal workers or discontinuous professions.
- Under certain conditions, the employee is entitled to additional compensation (see above in the chapter Obligations of the employer).
The mount of daily allowances:
They are equal to 50% of the basic daily salary. This salary is calculated on the average of the gross salaries of the last 3 months prior to the sick leave (12 months in the event of seasonal activity).
The salary is considered within the limit of 1.8 times the monthly minimum wage.
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