Medical counter-visit of the employee on sick leave

The sharp increase in sick leave over recent years not only represents a growing share of the social security budget, around 17 billion euros in 2024 according to the latest forecasts.
It also generates a cost for the company, which has an obligation to maintain salary during the first weeks, and can sometimes cause operational difficulties in certain sectors such as education, catering, or healthcare.
It is in this worrying context that Decree No. 2024-692, published on July 5, 2024, has clarified the scope of the medical counter-visit of an employee on sick leave, increasingly used by employers under Article L.1226-1 of the Labor Code.
Location of the check
The counter-visit is in principle organized at the employee's home. However, if their place of rest differs from their home, the employee must now, under the new Article R.1226-10 of the Labor Code, communicate this address to the employer from the start of their sick leave and upon any change. If they have a sick leave with the mention "free exit", they must also inform the employer of the times at which the counter-visit can take place.
Article R.1226-11 further provides that this visit can now also take place at the doctor's office. It is done upon summons by the doctor by any means giving a definite date to the summons.
Conclusions of the check
At the end of their mission, the doctor must inform the employer, under the new Article R.1226-12 of the Labor Code:
– either that the sick leave is justified or unjustified;

– either the impossibility of carrying out the check for a reason attributable to the employee, in particular due to their refusal to attend the summons or their absence during the home visit.
The medical controller also transmits their report within 48 hours to the medical control department of the health insurance fund, specifying whether or not they carried out the medical examination of the insured person.
Suspension of daily allowance payments
Based on the controller's findings, the employer is entitled to suspend the payment of supplementary sickness benefits. Likewise, the health insurance fund may also cease paying daily allowances if it also concludes, based on the medical controller's opinion, that the sick leave is unjustified.
Finally, if the medical controller considers that the sick leave is not or is no longer justified, the employee must return to work. If they refuse and decide to follow their attending physician's prescriptions, they do not commit a fault but are deprived of salary maintenance from the date of the counter-visit.
No disciplinary sanction
Contrary to popular belief, evading a medical check or taking a sham sick leave cannot lead the employer to initiate disciplinary proceedings unless the employee's disloyal attitude is proven.
It has even been ruled that engaging in an activity during sick leave does not constitute a breach of the duty of loyalty if it does not compete with the company! (Cass. soc 26-2-2020 n° 18-10.017 FS-PB; Cass. soc. 7-12-2022 n° 21-19.132 F-D).
To be able to sanction the employee, the employer must demonstrate that the employee is engaging in a directly competing activity and that they are suffering an identifiable prejudice (Cass. soc. 21-11-2018 n° 16-28.513 F-D).
*
Like the decree of July 5, 2024, which inserted into the labor code provisions created by case law on the medical counter-visit of the employee, the legislator should also address the issue of the employer's right to sanction employees who knowingly place themselves in a fraudulent situation and thereby harm the company.

Social law