OD FLASH | Time off work: physical activity must be expressly authorised in advance

Cass. civ., 2^e 16 mai 2024, n°22-14.402, F-B

As a reminder, under Article L.323-6 of the Social Security Code, entitlement to sick pay is subject to the condition that the insured person does not engage in any unauthorised activity during the period of sick leave, with the exception of activities authorised in advance by the prescribing doctor.

In this case, an employee received a daily allowance for sick leave prescribed by a doctor for the period from 29 January to 30 May 2018 and then from 30 May to 2 September 2018. However, the Caisse Primaire d’Assurance Maladie (sickness insurance fund) informed her that she had been wrongly paid because she had carried out an unauthorised activity.

After receiving a letter from the prescribing doctor, the Fund reduced the undue payment to €3,097.76, corresponding to the first period of the prescribed sick leave. The insured person appealed to the Social Division of the Court of Justice, which has jurisdiction over social security disputes.

The lower courts upheld the insured’s claim and cancelled the undue payment. The insured’s medical certificate, issued after she had stopped working, showed that she had previously been expressly authorised to engage in physical and sporting activities and that, according to the doctor, physical activities had been an essential part of the treatment. The court found that the certificates of 19 March and 3 June 2020 had authorised the insured to engage in sporting activities at the time of each of the prescribed breaks from work in 2018, so that she was not liable for daily benefits for that period.

The Fund appealed against this decision. In support of its appeal, it argued that the payment of the daily allowance was conditional on the insured person’s obligation to refrain from any activity that had not been expressly authorised in advance. The Fund added that express prior authorisation to engage in an activity could not be inferred from a certificate issued after the event.

The Social Division of the Court of Cassation, citing Article L.323-6 of the Social Security Code, overturned the lower courts’ decision and accepted the Fund’s argument. It states that “in order to uphold the insured person’s claim, it is up to her to prove that she was entitled to take part in a sporting activity”. It notes that the certificates drawn up a posteriori by the prescribing doctors show that physical activity and sport are strongly recommended for the treatment of the pathology presented by the insured. It concluded that the insured had been expressly authorised, and even encouraged, to engage in such activity during the various periods of her absence from work, for exclusively therapeutic purposes. However, in so ruling, when it was clear from the findings of the judges that the insured had taken part in a physical and sporting activity during her period of sick leave without having been expressly authorised to do so by the prescribing doctor, the judge infringed the letter of the aforementioned text of the Social Security Code.

It should therefore be noted from this decision that the provision of a medical certificate after the fact does not justify the practice of sport during a period of sick leave.