Unfitness for Work: Employer Obligations, Procedures and Best Practices

Unfitness for work remains a sensitive situation requiring careful handling. It involves strict employer obligations, particularly concerning workplace adjustments, redeployment efforts, and, when no other solution exists, termination of employment.

Because the rules are complex and mistakes can be costly (notably through lengthy labour court disputes), our experts offer a clear breakdown of the key steps, associated risks, and recommended practices. 

Certification of Unfitness: Defining the Framework and Securing the Process

What is unfitness?

According to the French Labour Code (art. L.4626-4), an employee is declared physically unfit by the occupational physician when the physician determines that no adaptation, adjustment, or transformation of the position held is possible, and that the employee’s health condition requires a change of position.

Conversely, the employee must be declared fit if their health condition allows them to be reinstated in their position, if necessary after individual measures of adjustment, adaptation, or transformation of the position or of work conditions.
  

Two types of unfitness :

• Work-related unfitness (resulting from an occupational accident or occupational disease).
• Non-work-related unfitness (for example following an illness).
   

This distinction is important, as the financial consequences in case of contract termination differ.
 

Note: Case law confirms that the protective rules for victims of work-related accidents or diseases apply whenever the unfitness—regardless of when it is identified—originates at least partly from such an event, provided the employer was aware of this occupational origin at the time of dismissal (Cass.soc. 28 février 2024, n°22-19.878)
 

When is unfitness established?

-> During the return-to-work medical examination

This examination is mandatory:

• After maternity leave
• For employees under enhanced individual monitoring or night workers
• After an absence due to an occupational disease
• After an absence of 30+ days due to a work accident
• After an absence of more than 30 days for non-work-related illness or accident

When the employer is informed of the end of sick leave, they must contact the occupational health service to organise the return-to-work examination (Labour Code art. R.4624-31).

The employer must organise the visit themselves - even if the employee has been classified in disability category 2 - unless the employee clearly refuses to return to work. The employer cannot merely invite the employee to book the appointment.

The visit must be organised at the time of return and no later than 8 days afterwards. Failure by the employee to attend the examination may constitute serious misconduct.
 

->At any time during any medical visit

For instance:

• During mandatory periodic medical examinations
• During a return-to-work visit
• At any moment if justified by the employee’s health condition

Any employee anticipating a risk of unfitness may request a medical visit to explore options for job retention.
 

Exception: Unfitness cannot legally be established during a pre-return visit.
 

Sometimes a second medical examination is required; it must take place within 15 days following the first one.

Only the occupational physician may declare an employee unfit—not the general practitioner nor the social security services (CPAM). The occupational physician must:

• Conduct a medical examination, including any necessary complementary tests
• Analyse the employee’s workstation
• Study working conditions and indicate the date of the company health and safety report update
• Exchange information with the employer by any means

Unfitness Certificate: A New, Clearer Framework Effective July 1, 2025

A new standardised certificate (Order of 3 March 2025) must now include:

• Medical conclusions regarding the employee’s abilities
• Redeployment or job-retention recommendations
• Possible exemptions from redeployment obligations

The unfitness certificate includes written conclusions and redeployment guidance. In case of doubt, employers must request clarification from the occupational physician.

Since July 1, 2025, the certificate must also explicitly mention the two exceptional situations allowing the employer to be exempted from attempting redeployment and from consulting the Social and Economic Committee (CSE).

The unfitness certificate marks the starting point of the procedure. Employers must read it carefully and document exchanges with the occupational physician.
 

Both the employer and the employee may contest the decision before the labour court within 15 days of notification.

Redeployment Obligation: A Mandatory Step

What is the scope of this obligation?

Once an employee is declared unfit for their previous role, the employer must propose another suitable position, taking into account the physician’s conclusions and the CSE’s opinion.

The occupational physician may also indicate whether the employee could benefit from training enabling them to occupy an adapted role.

Key points of attention:

1. A suitable position must be proposed
2. Temporary available positions — including fixed-term roles — must be considered
3. The occupational physician must validate the proposed position(s) beforehand

The redeployment obligation is considered fulfilled when the employer has proposed a position in line with the physician’s recommendations.

Proposals must be made in writing and include position details, duties, remuneration, working hours, location, mobility conditions, etc.

Employees must be given a reasonable reflection period.
 

Where must the employer look for redeployment options?

Redeployment must be assessed:

• within the company
• and within the group (if any), on French territory, where staff mobility is feasible

Case law clarifies that redeployment possibilities must be assessed no later than at the time of dismissal notification. (Commercial Code, articles L.233-1, by I and II of article L.233-3 et L.233-16)
 

Two Legal Cases of Redeployment Exemption

The employer is exempted from any redeployment search when the occupational physician states that:

1. Any continued employment would seriously harm the employee’s health;
2. The employee’s condition prevents any redeployment.

In such cases, dismissal may proceed without CSE consultation  (Cour de cassation, 8 juin 2022).

What if Redeployment is Impossible?

If the employer cannot redeploy the employee, they must inform them in writing, explaining the reasons for the impossibility - after consulting the CSE, if applicable.

Dismissal may occur when:

• No suitable position exists
• The employee refuses a suitable position compliant with medical recommendations
• The certificate explicitly states that retaining the employee is harmful or redeployment is impossible

Unfitness Certificate: Summary Flowchart of Procedures Depending on Whether Redeployment Is Possible or Not

Summary table

Following the notification of the certificate, there are two possible scenarios:

Reminder of the statutory dismissal procedure, excluding any adjustments provided for by the company’s applicable collective agreement

Financial Consequences: Termination Indemnities 

1. If unfitness is non-work-related:

The employee is entitled to:

• The conventional or legal severance payment (whichever is more favourable)
• No notice pay, unless provided by collective agreement
• The notice period is included when calculating severance.
   

   2. If unfitness is work-related:

The employee is entitled to:

• Compensation equivalent to notice pay (which does not entitle them to paid leave);
• Conventional severance, or if more favourable, special severance equal to double the legal amount;
• The reference salary is based on either the last 3 or 12 months—whichever is more favourable.

However, no indemnities are due if the employee abusively refuses a suitable redeployment proposal.

Important: Employers must resume salary payment one month after the unfitness certificate if no redeployment has occurred. The salary is fixed at the previous amount; employers may not deduct daily social security allowances (IJSS).

What Are the Penalties in Case of Disputes?
 

   1.If unfitness is non-work-related:

A dismissal without proper redeployment efforts (including CSE consultation) is considered without real and serious cause.  The employee is entitled to the indemnity under Labour Code article L.1235-3.

This is cumulative with severance and notice indemnity.

   2. If unfitness is work-related:

The court may propose reinstatement with full acquired benefits.

If either party refuses reinstatement, the judge awards compensation under article L.1235-3-1 for null dismissals (minimum 6 months’ salary, no seniority or workforce conditions).

This compensation is cumulative with statutory compensations.

Managing unfitness for work is a major legal, human and organisational challenge. Case law evolves constantly, requiring HR and business leaders to remain vigilant.

Our experts recommend documenting every step, archiving all exchanges with occupational health services, and training managers to identify early signs of employee vulnerability. Proactive practices are essential to ensuring both legal compliance and protection of employee rights.