When the employee is unable to work, he/she must provide proof of this. To do so, he or she must contact his or her doctor and request a medical certificate. This certificate must contain a certain amount of information, notably the degree of incapacity and its duration.
This medical certificate is presumed to be true. However, it is not absolute proof. The employer may question it in certain situations.
There are many situations in which the employer may suspect that the employee is not really unable to work. Examples include an employee with the flu who is seen at a nightclub, an employee with back pain who plays tennis, or an employee who goes on sick leave during a holiday that was requested but refused by the employer or after being fired...
When in doubt, the employer must react quickly and well. But how should he behave? Can he ask the employee's doctor to reassess his situation? Or require the employee to tell him what illness he has?
The situation in which the employer has well-founded doubts about the employee's inability to work is a delicate one. Data concerning the employee's state of health is personal, sensitive and subject to medical confidentiality.
Depending on the circumstances, the employer may call on the services of a medical consultant. The latter will be responsible for verifying a certain number of points, in particular the reality of the inability to work. However, he must respect medical secrecy.
If the employee refuses to go to the medical consultant without a legitimate reason, the employer may draw the appropriate conclusions.
The medical consultant concludes that the employee is not incapacitated for work, at a lower rate or for a shorter period of time than that estimated in the first medical certificate. How should the employer react to this situation? Is the first certificate a false medical certificate?
The employer may not, in principle, send employees to a medical consultant every time they are unable to work. He must have concrete and serious doubts. But does the employer also have to provide for the possibility of referring the employee to a medical consultant in the company's regulations?
Loss of earnings insurance
If the employer has taken out a loss of earnings insurance policy, he/she can intervene in the event of the employee's inability to work. The employer will sometimes have to ask the employee to consult its medical consultant. How should the employer react when the insurance company's medical advisor concludes that the employee is not unable to work when the latter claims the contrary, with medical certificates to support his claim?