Physical incapacity: scope of an exemption from “on-site” reclassification Cass. soc. December 13, 2023, n° 22-19603

In application of articles L. 1226-2 and L. 1226-10 of the Labor Code, the finding of the physical unfitness of an employee to occupy their position requires the employer to seek a reclassification solution.

The laws “ Rebsamen ” and “_11100000-0000-0000-0000-0000000001 11_El Khomri » of August 17, 2015 and August 8, 2016, however, created an exception to this obligation.

Thus, from now on, the employer is exempt from any search for reclassification when the opinion issued by the occupational doctor specifies that any retention of the employee in a job would be seriously detrimental to his health, or that the state of health of the employee prevents any reclassification in a job (art. L. 1226-2-1 and L. 1226-12 of the Labor Code).

In practice, the notice of incapacity includes boxes to check for each case of exemption from the reclassification obligation.

What happens, however, when the wording of the notice of incapacity is confusing ? In particular, can the employer consider itself exempt from carrying out reclassification research when the occupational physician has ticked one of the boxes appearing on the notice while providing the latter with details as to the extent of the reclassification exemption ?

Not necessarily, according to the Court of Cassation.

In a case which gave rise to a judgment delivered on December 13, 2023, an occupational physician had :

• declared an employee unfit to occupy his position ;

• checked the box of the notice of incapacity mentioning that “ the state of health of the employee prevents any reclassification in a job ”_11100000- 0000-0000-0000-000000000111_;

• specified in the same document that incapacity prevented any reclassification in a job « on the site_11100000-0000-0000 -0000-000000000111_”.

The employer considered that the said notice authorized it to dismiss the employee without carrying out prior research into a reclassification solution.

Wrongly, according to the trial judges, whose judgment was confirmed by the Court of Cassation, on the grounds that the exemption from reclassification was not total, the employer having in the species of other sites:

« The court of appeal deduced exactly that the employer was not exempt, by an opinion of incapacity from the occupational doctor limited to a single site, to seek reclassification outside the establishment to which the employee was assigned and had thus failed to fulfill his reclassification obligation .

Such a decision calls for the greatest vigilance in the face of notices of incapacity which may lead to confusion.

It is therefore advisable not to stop at the box checked by the occupational physician, but to contact the latter in case of doubt about the extent of the reclassification exemption.