Challenging a follow-up certificate is possible but under certain conditions

(Cass. soc., 26 October 2022, n°21-17.484)

As a reminder, according to articles L 4624-7 and R 4624-45 of the Labor Code the employee or the employer may bring an action before the Conseil de prud’hommes within 15 days, according to the accelerated procedure on the merits, in order to contest the opinions, proposals, written conclusions or indications issued by the occupational physician based on medical elements.

In other words, are contestable by the employer or the employee:

• the medical opinion on the suitability or unsuitability of an employee benefiting from enhanced medical monitoring due to his or her assignment to a high-risk position (article L 4624-2 of the Labor Code)
• the medical opinion of physical unfitness, (article L 4624-4 of the Labour Code)
• and any recommendations for the adjustment, adaptation or transformation of the workstation, which are made in consideration of the age or the physical or mental state of health of the employee (article L 4624-3 of the Labor Code)

On the other hand, they are not subject to any appeal in the forms prescribed by articles L4624-7 and R 4624-25 of the Labour Code:

• procedural defects affecting the fitness or unfitness procedure,
• challenges unrelated to the employee’s state of health and related to the employer’s inability to comply with a recommendation made by the occupational physician,
• disputes relating to the occupational origin of the incapacity,

This type of dispute is, in principle, only within the competence of the judgment office of the Labour Court.(Cass.avis March 17, 2021, n°2170.002; QR min. trav. updated on 7-4-2022 : travail-emploi.gouv.fr)

Thus, in the absence of precision, one could legitimately wonder about the possibility of challenging a follow-up certificate before the Conseil de prud’hommes since everything suggested that it was not subject to any appeal since it did not contain any advice, proposals, written conclusions or indications of a medical nature.

The answer has now been provided: in a groundbreaking decision dated October 26, 2022, the Court of Cassation confirmed that the follow-up certificate may, in certain cases, be considered as an opinion of the occupational physician and thus be challenged by the employee or the employer. (Cass. soc., 26 Oct. 2022, n°21-17.484)

***

In this case, an employee was hired as a sales agent at the SNCF in December 2000 and had her workstation modified since 2013.

At the end of a medical examination on December 18, 2019, the occupational physician had issued a certificate of individual monitoring of the state of health mentioning however the following reservation: “No prolonged standing, no carrying of > 2KG loads while awaiting further examination. To be reviewed no later than 02/29/2020 by the occupational physician”.

During a new medical examination scheduled on February 27, 2020, as part of the periodic follow-up, the occupational physician had, this time, given the employee a new follow-up certificate, without mentioning any proposal for individual measures to adapt the workstation.

Thus, the question arose as to whether it was possible to challenge this certification.

• Is it possible to challenge a follow-up certificate ending individual accommodation proposals?

Wishing to be able to continue to benefit from a modified workstation, the employee brought an action before the Bordeaux industrial tribunal, following the accelerated procedure on the merits, in order to have an opinion of aptitude with reservations substituted.

By judgment dated September 10, 2020, the Council dismissed the case, considering that the follow-up certificate issued on February 27, 2020 was not subject to appeal in the manner prescribed by Articles L 4624-7 and R4624-45 of the Labor Code.

However, the Bordeaux Court of Appeal will not agree. In a decision dated March 31, 2021, the Court overturned the judgment, considering that the follow-up certificate could be appealed insofar as it had lifted the restrictions from which the employee benefited.

In these circumstances, the employer appealed, considering that a strict application of the provisions of the Labor Code prohibited such an interpretation, the Court of Appeal having, according to him, deprived its decision of a legal basis.

He argued that only a follow-up certificate containing a medical recommendation could be appealed, which was not the case here.

However, this analysis will not be shared by the High Court.

• The challenge of a follow-up certificate confirmed by the Court of Cassation but subject to certain conditions?

In a decision dated October 26, 2022, the Court of Cassation rejected the appeal filed by the employer:

• by recalling, first of all, that pursuant to article L 4624-7 of the Labor Code, the employee or the employer could bring before the Labor Court a dispute concerning the opinions, proposals, written conclusions or statements issued by the occupational physician based on elements of a medical nature,
• considering, secondly, that when the occupational physician, who had previously proposed an individual measure to adapt the position pending further medical examinations, goes back on this proposal, this decision is subject to appeal.

With this decision, the High Court seems to favour a broad interpretation of the texts.

***

It remains to be seen what the scope of this unprecedented decision will be and what the final position of the Court of Cassation will be, which should be determined in its next decisions.

In any event, this judgment of October 26, 2022 must be put into perspective insofar as, although the High Court has confirmed the possibility of appealing against follow-up certificates, it can be deduced from the clarifications made that several limits have been set.

In fact, only follow-up certificates calling into question previous accommodations from which the employee benefited while awaiting additional examinations seem likely to be appealed.

Therefore, it is clear that any follow-up certificate is not necessarily contestable in court, bearing in mind that in this decision of October 26, 2022, the employee had already benefited from an accommodation for almost 7 years; so it is not impossible that the Court also took this factor into account.

Thus, if this decision has the merit of bringing us some clarifications, many questions remain unanswered to this day:

First of all, if the Court of Cassation had ruled that the disputed follow-up certificate could not be challenged under the accelerated procedure on the merits, would it have been challenged before the trial board of the industrial tribunal, as is already the case when the employer is materially unable to follow the recommendations of the occupational physician?

Beyond this decision, one may wonder about the possibility of contesting a new follow-up certificate containing accommodations like the previous one, which had not been the subject of any appeal within the two-month period? Does a new certificate of similar follow-up start a new 15-day period for challenging such accommodations?

Similarly, can a follow-up certificate that does not contain any accommodation be appealed even though it does not contain any medical advice?

Thus, there remains at present a legal vagueness in this matter. Further clarification by the Court of Cassation will therefore be welcome.