Sickness is an important issue for employers, but difficult to handle, given that there are numerous court decisions.
The questions an employer raises are often the following:
- which obligations does the employee have in case of sickness; and
- what is the reaction of the employer in such a case.
Remember that, pursuant to article L.121-6 (2) of the Labour Code, the employee has two obligations:
- inform the employer on the 1st day of absence; and
- transmit a medical certificate on the 3rd calendar day of absence at the latest.
For a sickness absence of 1 and/or 2 days, the employer can only request the communication of a medical certificate if (i) the employment contract or (ii) an internal company regulation provides for this possibility; otherwise, the employee is not obliged to transmit a medical certificate to the employer for an absence not exceeding 2 days.
This interpretation is also in line with the legal social security provisions: pursuant to article 171 of the Statuts of the social security authority, “the communication of a medical certificate for sickness absences of 1 or 2 days is not mandatory”. The employer, duly informed by the employee, can therefore not terminate the employment contract unilaterally.
The communication of the medical certificate on the 3rd day is however sufficient.
In case of a sickness absence, the duly informed employer’s reaction is often the termination of the employment contract for perturbation of the service after expiry of 26 consecutive weeks of sickness.
Three decisions of the Court of Appeal dated 22 May 2014 (number 39444, 39998 and 39476) have specified that:
- 35 days of absence over 4 months; or
- 5 consecutive months can be sufficient to terminate the employment contract ; and
- the non-delivery of a medical certificate on the 10th day of sickness in case of long-term-absence does not constitute gross misconduct and a termination would be unfair.
A decision should be taken on a case-by-case basis, considering the individual circumstances of the case at hand.