Return to work and occupational reclassification
Law of 23 July 2015 amending the Labour Code and the Social Security Code as regards the mechanism for internal and external Redeployment
The Law on the mechanism for internal and external redeployment will enter into force on 1 January 2016. However, it must be borne in mind that matters referred to the mixed ommittee before 1 January 2016 will remain subject to the old legislation.
The new rules concerning professional redeployments which will directly affect employers are as follows :
- Strengthening of the employer’s obligation to redeploy a person internally on account of the abolition of quotas : henceforth, any employer who has at least 25 employees on the date when the matter is referred to the mixed committee will be required to carry out an internal redeployment. Such an employer will no longer be able to plead that he is already employing a given number of handicapped persons or persons with comparable disabilities in order to claim exemption from this obligation (Article L. 551-2(1)). The number of employees is to be assessed by reference to each establishment considered in isolation.
- Protection of employees against dismissal as from the date when the matter is referred to the mixed committee : the dismissal of an employee will be null and void as from the date when the matter is referred to the mixed committee until the expiry of the 12th month following the notification to the employer of the decision to carry out an internal professional redeployment (Article L. 551-2(2)) ; nevertheless, the employer will be able to dismiss the employee on grounds of gross misconduct during that period, in accordance with the procedure laid down in Article L. 124-10.
- Reduction of the working time of employees who are redeployed internally : in the event of an internal professional redeployment, that is to say, a redeployment within the undertaking concerned, the employee’s working time may be reduced to half the time specified in the employment contract, on the advice of the occupational physician (Article L. 551 1(3)). The working time may even be reduced by seventy five per cent of the initial working time in response to an application made by the employer or the employee to the mixed committee. Any party applying for a reduction of working time will be required to annex to his / her application evidence showing that either the employer or the employee (as the case may be) has been informed of that step, failing which the application will be inadmissible. The mixed committee will decide on the application for a reduction of working time on the basis of the advice of ADEM’s occupational physician (Article L. 551 1(3)).
- Certificate of fitness for employment : employees who have been employed in their post for less than 3 years are eligible for professional redeployment only if they have a certificate of fitness for the post in question (Article L. 551 1). In accordance with Article L. 326 1, the hiring review must take place within two months after the hiring itself.
- Fitness report by the occupational physician : in the case of an internal professional redeployment within the undertaking, the occupational physician must draw up a report on the employee’s fitness for the new job. That report will constitute, for the employer, evidence that the latter has fulfilled his redeployment obligation (Article L. 551 1(3)).
- Re-assessment of the situation of a redeployed employee : an employee who has been professionally redeployed will be re-assessed periodically by the occupational physician, unless the medical restrictions are definitive in nature. Following such a re-assessment, the occupational physician may refer the matter to the mixed committee for a decision on working time or on the possibilities of adaptation of the post concerned. If the occupational
- Physician finds that the employee has partially or fully regained his or her former fitness for work, he will refer the matter to the mixed committee for a decision either on working time or on the employee’s loss of status. The decision of the mixed committee will take effect with 6 months’ notice from the date of notification of the decision. That decision will not bind the employer (Article L. 551 6(2)).
- Compensation charge : an employer who refuses to carry out an internal professional redeployment may be required to pay compensation in a sum equivalent to the amount of the employee’s former contributory income referable to pension insurance for a maximum period of 24 months. In the absence of a fitness report by the occupational physician, the employer may be deemed to have refused to carry out the internal professional redeployment (Article L. 551 1(3) and Article L. 551 3(2)).
The other measures introduced by the new Law are as follows :
- The Law creates a status of person in professional redeployment for persons redeployed externally by the mixed committee. That status will enable the person concerned to accept a new job whilst retaining his / her rights for as long as he / she has not regained his / her previous fitness for work (Article L. 551 6(1)).
- In certain cases, namely in the event of loss of employment as a result of cessation of the employer’s activities or collective dismissal, a person who has been internally redeployed may call upon the mixed committee to adopt an external redeployment decision with a view to obtaining the status (Article L. 551 6(2)).
- The Law breaks new ground by introducing a new means of access to the redeployment procedure (Article L. 326 9) ; thus, the occupational physician may himself call upon the mixed committee to decide on an internal professional redeployment if the following three conditions are fulfilled :
- the employer has a total workforce of at least 25 employees ;
- the employee has been employed by the undertaking for at least 10 years ;
- the post for which the employee is declared unfit is a post involving risk.
- The Law changes the rules concerning access to the professional tide-over allowance (indemnité d’attente ) and the amount of that allowance (Article L. 551 5(2)). A person who has been redeployed externally may claim a professional tide-over allowance at the end of the statutory period for payment of unemployment benefit only if he / she was employed for at least 10 years in his / her last job or has a length of service of at least 10 years. The amount of the tide-over allowance corresponds to 80% of the monthly contributory income referable to pension insurance received during the 12 calendar months preceding the professional redeployment decision.