Can the employer ask sick employees to undergo a second medical examination

Sometimes employers have doubts as to the reality of an employee’s illness or believes that the medical certificate is not authentic.

According to case law, an employer may request of an employee to undergo a new medical examination by a doctor of the employer’s choice, even during the period of the medically established illness.

Employees may not refuse this request without good reason.

If an employee does not submit to this additional examination and fails to give any explanation to his employer, he commits a serious fault. More to the point, standard protection against dismissal is no longer valid.

Whereas if the employee submits to the additional examination, the certificate issued by this doctor has no precedence over the certificate produced by the employee. It alone does not defeat the value of the certificate issued by the employee’s treating physician. The employer must seek the opinion of a third physician to determine the validity of the other two. Other elements must be found to reinforce the employer’s conviction that the employee is not unable to work, such as staying out beyond times authorised or leaving the house without authorisation, over-frequent departures from the sickbed, etc.).

A decision by the Court of Appeal dated 15 July 2014 (N° 39910 of the case list, InfosJuridiques CSL N° 10/2014, page 4) stated that when an employee’s treating physician diagnosis of work incapacity has been confirmed by the medical adviser of the Medical Inspectorate of Social Security, this cannot be refuted by other medical examinations at the request of the employer, even if the employer was unaware of them.

The law dated 7 August 2015 confirmed this pre-eminence of the opinion of the Social Security Medical Control over any other doctor.

Can a sick employee be subject to an administrative control at the request of his employer?

Administrative control of persons unable to work means a visit by inspectors, either at home or in any place where the person is staying. The check may also take place in public places or in care centres where these persons go.

The administrative control is carried out by sworn inspectors appointed by the National Health Fund (CNS). The inspectors carry an authorisation card and are responsible for checking whether a person unable to work complies with the legal provisions.

In general, the competent department of the CNS may carry out a sickness check whenever it is informed that an insured person is absent from work due to incapacity for work as a result of illness or accident.

This administrative check can be carried out at the written request of the employer by means of a form sent to the control department by post, fax or electronically.

In situations where the employer has indicated the absence of an employee to the Inspectorate for control purposes, he shall obtain a written confirmation by fax or e-mail, together with a registration number for the related message.

The employer must immediately report through the same channel any
resumption of work by the employee before the end of the absence due to the employee’s incapacity to work.

A new request concerning the same person may be submitted by the employer at the earliest after 30 days have elapsed since the last request.

This control extends both to periods when the employer continues to pay the employee and to periods when the sick employee is dependent on the CNS.

Administrative controls may be carried out outside the borders of the Grand Duchy of Luxembourg. In this case, the check is carried out either by agents of the competent authorities of the country of residence or in which the subject is staying, or, if the applicable legal instruments so provide, also by inspectors mandated by CNS.