D6a14 - May the employer asked the sick employee to submit to a medical counter-examination?

Yes.

In fact, a medical certificate merely represents a simple presumption of illness which may be overturned by the employer on the basis of any prove to the contrary, in particular by a medical counter-examination.

Thus, when the employer has doubts as to the reality of the employee’s illness or if he fears that he has been given an indulgently accommodating certificate, he may ask the employee to submit, even during the period of medically ascertained sickness, to a medical counter-examination by a doctor having the same specialisation as the attending physician, or by a general practitioner.

The doctor chosen by the employer may be established in the Grand Duchy of Luxembourg or in the State where the employee resides. The employer may also send the doctor to the employee’s home.

In such case, the doctor’s fees are to be borne by the employer.

Nota Bene

The employee may not refuse to submit to the counter-examination without valid reasons.

However, the employer must allow the employee a reasonable period to present himself to the doctor. The employee may not, even during the sickness and without valid reasons, refuse to be seen by the doctor chosen by the employer.

At the present time, it is not clear what the court considers to be valid reasons, but it is clear that each case will be examined in isolation depending on the personal circumstances of the employee.

A medical counter-examination may be conducted either by a doctor chosen by the employer or by the doctor of the Social Security Medical Board.

Thus, the employer may give to the doctor of the Social Security Medical Board notice of a possibility of abuse and suggest that he undertake a counter-examination.

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