An employee, who is on continuous leave, asks to be received by the occupational physician for a first medical examination to assess his ability to return to his job. At the end of this visit, unable to decide on his suitability, the occupational physician carries out a job study, studies the working conditions and exchanges with the employer.

15 days later, after informing the employer, the occupational physician summons the employee for a new medical examination at the end of which he declares him unfit for any position and considers that any retention of the employee in a job would be seriously detrimental to his state of health.

The employee is dismissed by his employer the following month for incapacity and impossibility of reclassification. He brought an action before the tribunal because he considered that his dismissal was based on an irregular notice of incapacity because it was the result of a medical examination organized by the occupational physician.

The labor court agrees with the employee and acknowledges dismissal without real and serious cause.

The employer appealed the decision to the Court of Appeal, which won the case. For her, the occupational physician had complied with the procedure provided for by the Labor Code.

The employee appeals in cassation. According to him, only a medical examination carried out at the request of the employee on sick leave can terminate the suspension of the employment contract (and lead to the finding of incapacity). Thus, the opinion of incapacity issued at the time of the second visit, which he had not requested, was irregular in his view.

Can the occupational physician validly establish the incapacity of an employee on leave of work after an unsolicited medical examination by the employee?

Public Service replies:

The Court of Cassation, in its decision of March 11, 2026, recalls that the occupational physician declares the worker unfit for his position, after a job study and exchanges with the employee and the employer. No accommodation, adaptation or transformation of the position occupied must be possible and the employee's state of health must justify a change of position.

It also recalls that the worker may request a medical examination when he anticipates a risk of incapacity. The occupational physician can also organize a medical examination for any worker who needs it.

In the light of those factors, the Cour de cassation considers that the incapacity may be established at the end of a visit initiated by the occupational physician, provided that the latter:

• has carried out at least one medical examination of the person concerned (accompanied, where appropriate, by additional examinations, allowing an exchange on accommodation, adaptation or transfer measures or the need to propose a change of post);
• conducted or commissioned a study of the position;
• conducted or commissioned a study of working conditions at the establishment;
• has exchanged (by any means) with the employer.

The Court of Cassation then confirmed the reasoning of the Court of Appeal, considering that the incapacity of the employee had been regularly established. The occupational physician may therefore find that an employee who has stopped working is unfit following a medical examination he has initiated.

Consequently, the dismissal of the employee is based on a real and serious cause. His applications are therefore rejected.