An employee has not shown up for work for two weeks, the sick leave seems questionable, and a medical inspector is appointed. The visit takes place, the report comes in, but one question often remains unclear: who bears the responsibility if something goes wrong during this inspection? The answer depends on the exact role of each party, and misunderstandings on this point regularly fuel labor disputes.
Employee’s Duty of Loyalty During Sick Leave
Even before discussing the medical inspector, it is often forgotten that the employee on sick leave has specific obligations. They must adhere to the hours of prohibition set by their treating physician, usually from 9 AM to 11 AM and from 2 PM to 4 PM. If they are allowed free outings, they must inform their employer of their whereabouts.
If the employee is absent from their home during the counter-visit without a valid justification, the employer can suspend the salary supplement. This is not a disciplinary sanction, but a direct consequence of failing to comply with a condition for maintaining remuneration as stipulated in Article L. 1226-1 of the Labor Code.
Case law goes further. A ruling from the Court of Cassation on September 4, 2024 (n° 23-15.944) reminded that the employer is liable if they make an employee work during their sick leave, with the damage being automatic. The question of liability regarding medical inspections by a medical inspector does not only concern the practitioner who comes to visit, but also how the employer manages the entire sick leave period.
Employer’s Responsibility in Appointing the Medical Inspector
The employer who pays additional benefits to the employee has the right to conduct a medical counter-visit. This right exists, but it comes with a direct responsibility regarding the choice of practitioner and the conditions of the inspection.
The Choice of Doctor: An Obligation of Independence
The appointed doctor must be independent. They cannot have a personal connection with the employer. If this condition is not met, the inspection can be contested before the labor courts, and the employer loses the ability to suspend the salary supplement.
In practical terms, one does not appoint their brother-in-law who is a doctor or a practitioner who usually acts as a consultant for the company on other matters. The impartiality of the medical inspector conditions the validity of the inspection.
The Decree of July 5, 2024: A Finally Clear Framework
Decree n° 2024-692 of July 5, 2024, clarified the modalities of the counter-visit. Before this text, the rules of the game remained largely jurisprudential. Now, the conditions of place, time, and procedure are codified.
The medical inspector decides alone on the time and place of the counter-visit. It can take place at the employee’s home or at the rest location communicated in the sick leave, without prior notice. However, the visit cannot occur during the authorized outing hours.
- The employer chooses the doctor but cannot dictate their conclusions or influence their medical opinion.
- The medical inspector assesses the justification of the sick leave and its duration, then sends their conclusions to the employer.
- If the sick leave is deemed unjustified, the employer can suspend the additional benefits, but it is the employer who makes this decision, not the doctor.
- The employee retains the right to contest the conclusions by bringing the matter before the labor court.
Responsibility is therefore clearly divided: the doctor is responsible for the quality of their medical examination, while the employer is responsible for the decisions they make based on the report.
Distinct Role of the CPAM Medical Advisor
The employer’s medical inspector and the CPAM medical advisor are often confused. Their missions and legal consequences are, however, very different.
The medical advisor acts on behalf of the Health Insurance, within the framework of Article L. 315-1 of the Social Security Code. Their role is to verify that the employee’s health condition justifies the payment of daily allowances. If they deem the sick leave unjustified, the CPAM can suspend these allowances.
The employer’s medical inspector, on the other hand, acts on behalf of the employer and only assesses the maintenance of the salary supplement. The medical inspector does not decide on the sanction: they provide a medical opinion, and it is the employer or the fund that draws the financial consequences.
Feedback varies on this point depending on the situations, but in practice, an employee can be inspected by both circuits in parallel, without the conclusions of one binding the other.
Concrete Consequences of an Irregular Inspection
When an inspection is poorly organized, the consequences fall on the one who made the mistake. If the medical inspector violated medical confidentiality by transmitting detailed clinical information to the employer (beyond the simple opinion on the justification of the sick leave), they incur their ethical responsibility before the Order Council.
If the employer suspended the salary supplement while the inspection was irregular (non-independent doctor, visit during authorized outing hours, failure to respect the communicated location), the employee can obtain the recovery of amounts before the labor court.
- The medical inspector incurs their professional responsibility regarding the rigor of the examination and the respect of medical confidentiality.
- The employer incurs their responsibility regarding the choice of practitioner, adherence to the procedure, and decisions made after the report.
- The employee incurs theirs if they voluntarily evade the inspection or engage in activities incompatible with their sick leave.
The chain of responsibility during an employer’s medical inspection is therefore not a monolithic block. Each actor bears their share: the doctor for the quality and ethics of their intervention, the employer for the regularity of the procedure and the follow-up actions, the employee for respecting their obligations during the sick leave. A well-conducted inspection protects both the company and the employee, provided that everyone stays within their scope.