Sick Leave and Return to Work: When Fitness for Light Work Stops Daily Allowances

Imagine: you are a property owner in Colombes, you rent out a flat, and your tenant, employed in the construction industry, has been on sick leave for months. He tells you he can no longer pay his rent because he no longer receives daily allowances. The CPAM (Primary Health Insurance Fund) stopped its payments, considering that he can do light work. He considers himself still unfit for his job. Who is right? This situation, more common than one might think, regularly pits employees against social security bodies.

The central question is: does an employee who can no longer perform their previous job, but is declared fit for normal light work, have the right to continue receiving daily sickness allowances? The answer from the Court of Cassation, delivered on 15 May 1968, is clear: no. This ruling, still cited today, sets out an essential rule of social security law.

In this article, I explain the facts, the judges' reasoning, and most importantly what this means in practice for you, whether you are an employee, employer, or even a landlord in Levallois-Perret faced with a tenant on sick leave.

The facts: a story that happens every day

Mr X, an employee of a construction company in Strasbourg, suffers from an illness that prevents him from returning to his usual job. He receives daily allowances from social security. But after a certain time, the CPAM's medical advisor considers him fit for normal light work. The CPAM (primary health insurance fund, the body that pays the allowances) therefore decides to stop paying daily allowances as from 1 March 1965. Mr X challenges this decision: according to him, he is still physically unable to return to work, because his job required physical strength that he no longer has.

The case is brought before the first instance commission of Strasbourg (the predecessor of the specialised social security court). This commission rules in favour of Mr X, considering that he is still unfit. But the regional director of social security in Strasbourg appeals. The Court of Cassation, seized of the matter, must decide: is unfitness for the previous job sufficient to continue receiving allowances?

The twist: the Court of Cassation sets aside the decision of the first instance commission. It refers the case back to another court, considering that the lower court judges did not correctly apply the law.

The reasoning of the court — analysed

The Court of Cassation relies on Article 283 of the Social Security Code (now codified in Articles L. 321-1 et seq.). This provision states that the employee is entitled to daily allowances as long as they are physically unable to return to work. But note: this incapacity is assessed in relation to any paid work, not just their previous employment.

In this case, the first instance commission had considered that Mr X was unable to return to his specific job. But the Court of Cassation responded: you have misinterpreted the law. The incapacity must be absolute, meaning it must prevent any professional activity, even light work. However, the medical advisor had declared Mr X fit for normal light work. Therefore, he is no longer physically incapacitated within the meaning of Article 283.

This is not a departure: the Court confirms a consistent line of case law. It reminds that health insurance is not intended to compensate for the loss of a specific job, but to cover total incapacity to work. If the employee can perform another activity, even if less well paid, the allowance ceases. This reasoning is harsh, but logical: daily allowances are funded by national solidarity, and their payment must be reserved for those who are absolutely unable to work.

What this means for you — in practice

If you are an employee: you must understand that your sick leave only protects you if you are medically unfit for any work. If the medical advisor declares you fit for light work, your allowances stop, even if you have not found a new job. For example, a bricklayer in Levallois-Perret who can no longer carry heavy loads but can do office work will lose their allowances. You can challenge the medical advisor's opinion before the judicial court (social security litigation), but the deadline is short: 2 months from notification.

If you are an employer: this decision supports you: you can require the employee to return to work if they are fit for an adjusted post. But note: you must offer redeployment (adapted post) before considering dismissal for unfitness.

If you are a landlord: a tenant who loses their daily allowances may have difficulty paying rent. You cannot evict them overnight, but you can start proceedings for non-payment. In Colombes, a property owner recently consulted me: his tenant, a delivery driver, had lost his allowances because he was deemed fit for sedentary work. The tenant had not paid for 3 months. We were able to obtain a formal demand for payment, then a termination of the lease.

If you are a co-owner: no direct impact, but if your managing agent is an employee on sick leave, this case law may speed up their return.

Four tips to avoid this type of dispute

• Keep all medical opinions: from the start of your sick leave, ask your GP for a detailed certificate about your incapacity. If the medical advisor declares you fit for light work, obtain a counter-opinion from your GP.
• Challenge quickly: if the CPAM stops your allowances, you have 2 months to refer the matter to the internal review commission (CRA). After this deadline, the decision is final. In Levallois-Perret, a client lost 6 months of allowances for not challenging in time.
• Request a medical expert assessment: if you disagree with the medical advisor, you can request an expert assessment from the judicial court. This costs a few hundred euros, but can win you months of allowances.
• Anticipate the loss of allowances: if your doctor tells you that a return to light work is possible, prepare your budget. Do not wait for the CPAM's decision to look for another job or apply for benefits (income support, disability allowance).

Further reading: related case law and developments

This 1968 decision has been confirmed many times. For example, the Court of Cassation held in a ruling of 14 February 1975 (No. 73-14.215) that an employee declared fit for part-time work can no longer receive full-time daily allowances. The trend is consistent: the incapacity must be total.

However, a recent development is worth noting: the law of 2 August 2021 (the "health at work" law) strengthened the employer's duty to redeploy. Now, if the employee is declared unfit for their post but fit for another, the employer must search for a suitable post, failing which they must pay a compensatory allowance. This does not change the rule on daily allowances, but it may help the employee find a job more quickly.

For the future, case law may evolve towards a more nuanced approach to partial incapacity, but for now, the 1968 rule remains the benchmark.

In practice: what to do

FAQ:

1. Can I challenge the opinion of the CPAM medical advisor?
Yes, within 2 months of notification. First refer the matter to the internal review commission (CRA) of your CPAM, then to the judicial court if rejected.

2. What if I am declared fit for light work but have no job?
You can register with Pôle emploi and claim unemployment benefit. You can also apply for recognition as a disabled worker (RQTH) to facilitate your redeployment.

3. Can my employer dismiss me if I cannot return to my post?
No, not directly. They must first search for a redeployment post. If they cannot, they can initiate a dismissal for unfitness, with a specific severance payment.

4. Are daily allowances taxable?
Yes, they are subject to income tax, but with a 50% reduction for sick leave lasting more than 3 months.

5. Can I work part-time while receiving allowances?
Yes, under conditions: your GP must authorise a therapeutic part-time return, and the CPAM may maintain part of the allowances.

Are you in a similar situation? An initial 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →