This newsletter covers six notable decisions in the areas of health, safety and working conditions:

• Monitoring employees’ workload is a component of the employer’s safety obligation (Cass. soc., 13 April 2023, n°21-20.043)

An employer is required to monitor the workload of its employees, and this monitoring falls within the scope of its legal safety obligation. The employer's failure can justify the payment of damages to employees if this breach causes them harm. This is the clarification provided by this case.

In the context of challenging his dismissal, an executive brought various claims before the labor court against his employer. He requested, notably, an order that the employer pay him damages for disregarding his legal safety obligation, arguing that the lack of monitoring of his workload harmed his health. The employee relied, in particular, on the fact that the employer had not set up an annual review to discuss his workload and its compatibility with his personal life.

The lower court judges rejected his claims. Based on various indicators, they believed that the employee did not provide proof that his workload was significant.

That reasoning did not convince the French Supreme Court. It noted the lack of annual reviews intended to monitor the employee's workload, which it characterized as a breach of the employer's safety obligation. According to the Supreme Court, the lower court should have verified whether the employee suffered any harm as a result of the breach and, if so, compensated the employee.

This decision calls on employers to carefully monitor not only the working and rest times of employees but also their workload, which fall under separate legal obligations.

Remember, also, that organizing one or more annual reviews to assess and monitor workload is part of the minimum requirements for the validity of an annual day package.

• Creating a position to reclassify an unfit employee requires consulting the occupational physician (Cass. soc., 21 June 2023, n°21-24.279)

The dismissal of an employee declared unfit by an occupational physician is only possible if the employee cannot be reclassified into a position suited to their abilities. If the occupational physician has made recommendations for this reclassification, the employer must take them into account. This ruling’s contribution to case law is that, if necessary, the employer should seek the practitioner’s assessment again.

In this case, an employee who had been declared unfit was dismissed after refusing to be reclassified into a position created especially for him by the employer. The employee disputed the termination of his employment contract. According to him, the employer failed to fulfill its reclassification obligation. The employee argued that the employer should have consulted the occupational physician again because his refusal of the proposed position was motivated by (1) the incompatibility of the intended job with his health condition, and (2) differences of opinion regarding the observance of certain ambiguous medical recommendations concerning his physical conditions and abilities. The new position did indeed involve driving a vehicle even though the occupational physician, without excluding travel, had ruled out staying in the same position for an extended period.

The Court of Appeal, followed by the Supreme Court, ruled in favor of the employee and judged the dismissal to be without real and serious cause.

This case highlights the need to handle dismissals for incapacity with the utmost caution and, when possible, to involve the occupational physician through to the end.

• Imposing too many constraints during on-call time can turn it into actual working time (Cass. soc., 21 June 2023, n°20-21843)

On-call time is not considered actual working time. Only the time during which an employee is actively engaged in work-related activities during on-call time—including travel time—is classified and paid as actual working time. However, for on-call time to be exempt from the classification of actual working time and the associated remuneration, the employee must be unable to be at their workplace or at the employer's immediate and permanent disposal while still being able to perform work for the company when needed. Meeting these conditions is not always easy when the activity requires the employee to be ready to act without delay at any time of day or night.

In this case, a highway repairman on call had to keep his phone and work vehicle with him at all times and be able to carry out any repair within a maximum of 30 minutes from a call. The aim was to fulfill the company's commitment to provide assistance 24/7, 365 days a year to customers.

A dispute arose during the employment relationship. The employee then requested the reclassification of his on-call time as actual working time, payment of overtime and a lump-sum indemnity for undeclared work. He highlighted the short time limit imposed for carrying out his assignments as well as their frequency.

Unsuccessful before the lower court judges, the employee appealed to the Supreme Court. The Court overturned the decision of the Court of Appeals that had rejected his claims, holding that the intensity of the constraints imposed during on-call time can characterize actual working time.

According to the Supreme Court, the Court of Appeals should have verified "whether the employee had been subjected, during his on-call periods, to constraints of such intensity that they had objectively and very significantly affected his ability to freely manage, during these periods, the time during which his professional services were not required and to engage in personal activities."

This decision should be kept in mind, in particular, when the employer sets the expected assignment time for the employee.

• The incapacity of the employee can be determined even during his/her sick leave (Cass. soc., 24 May 2023, n°22-1051)

In general, incapacity is determined during the return-to-work visit following a sick leave. However, this does not prevent an occupational physician from determining it during another medical visit. Here is an example.

In this case, an employee took the initiative to be examined by the occupational physician during a sick leave. Following this examination, the occupational health professional concluded that the employee was unfit. His dismissal for incapacity and impossibility of reclassification followed.

The employee disputed the termination of his contract. He claimed that the occupational physician could not conclude that he was unfit under these conditions. His claim was unsuccessful.

According to the Supreme Court, the occupational physician can determine an employee's incapacity for his/her position during an examination requested by the employee, regardless of whether the medical examination takes place during the suspension of the employment contract.

A classic but useful decision to keep in mind.

• Remote work and accidents: the importance of work hours and workplaces (CA Amiens, 15 June 2023, n°22/00474 ; CA Saint Denis, 4 May 2023, n°22/00884)

Occupational accidents that occur while working remotely always raise many questions. The law states that any accident occurring at the place where remote work is carried out during the remote worker’s professional activity is presumed to be a work accident. The strict application of this definition can help resolve certain situations simply. Examples:

CA Amiens, June 15, 2023, n°22/00474

An employee was performing her job by working remotely according to a defined and strictly controlled schedule via a digital timekeeping system. She had set up a workspace in her basement. The afternoon of the accident, she finished her workday by clocking out via the digital time clock at 4:01 p.m., then took the stairs to leave her basement. She then fell and fractured her elbow. The accident was not deemed to be work-related.

A dispute ensued. The lower court judges confirmed the position of the Health Insurance. They held that the presumption of the accident’s work-relatedness did not apply because, according to the digital time clock, the employee was no longer at work when she accidentally fell. Therefore, she had to prove that the accident occurred due to or in connection with work, which she failed to do.

This case highlights the benefits of having systems to monitor the work hours of employees in remote work situations.

CA Saint Denis, May 4, 2023, n°22/00884

An employee working from home experienced an Internet connection failure. He left his home and went onto a public road to investigate the cause. He then noticed that a truck had hit the telegraph pole that supported his telephone line and allowed his Internet access. A discussion ensued with the driver of the damaged truck. Another vehicle arrived, causing the pole to fall and hit the employee. Again, the accident was not deemed to be work-related.

According to the judges, by leaving his home and going onto the public road, the employee was no longer at his workplace, so the presumption of work-related attribution no longer applied. Here, too, the employee failed to establish a link with his professional activity. According to the judges, no one forced him to investigate the cause of the failure. By taking this initiative, the employee placed himself outside the employer's authority. He stopped his work for a personal reason, and, therefore, the accident could not be deemed to be work-related.