The statutes effective as of 01.01.2009 allow for an administrative control of persons on leave owing to sickness or accident to be carried out by the National Health Fund (CNS) both for the period when the employer is responsible for the payment of sickness benefits (continued payment of wages) and after the CNS has assumed responsibility for payments of cash benefits.
The controls may be initiated by either the person's employer or by the service "Enquêtes et Contrôles administratifs" of the CNS.
A request from the employer must be submitted to the competent service of the CNS in written form, either by e-mail or fax.
The Online request form must be duly filled out by the employer and submitted by either e-mail or fax.
All the fields in the form must be completed and the request must be justified.
Once the CNS has received the form, the employer will receive a confirmation.
The control consists of a visit to the home or current place of stay of the person reported incapable of work.
Should the person subject to the control be absent at the time of the visit, they will be considered to be in contravention of CNS statutes. In this case, the CNS agent will leave a notification with a reply form, inviting the person in question to provide a written justification of absence within three days of the visit, the date of the postmark of the letter being taken as evidence of the day the letter was sent.
These controls are carried out only on persons reported incapable of work owing to sickness or accident and who are supposed to remain at home and have not been given authorisation to leave their house; controls may also be carried out in public places.
Outcome of the control
In cases where the person subject to the control is absent at the time of the control and is not able to provide justification in the manner and within the time period laid down, their dossier will be examined as part of an investigation by the CNS, which can issue an administrative penalty.
The employer of the person subject to the control is notified by fax, mail or any other suitable written means when suspicion of a contravention of the statutes is confirmed by the fact that the person subject to the control provides no valid explanation of absence in the manner and within the time period laid down for the purpose.
The CNS services check whether the explanation of absence is founded. The CNS will pursue all doubtful cases.
In situations in which the control establishes that contraventions of another kind has taken place (practising a sport or activity which is not permitted, going out during the first five days of sickness, and/or going to non-authorised locations etc.) the relevant facts will be recorded by the CNS agent in his report.
Sanctions taken by the President of the CNS
The sanctions imposed by the President of the CNS for contravention of the statutes consist of administrative fines. These fines may be increased in the case of a recurring offence.
The person concerned may file an objection against the decisions on measures taken by the Council of Administration or they may appeal to the social courts.
List of sanctions imposed
Employers involved in a labour dispute with an employee on a charge of abusive absenteeism, and labour tribunals or social tribunals involved in litigation, may request from the CNS a list of sanctions incurred by the insured person in question following charges of abusive absenteeism.
Such lists contain no medical data and are confined to a listing of sanctions not open to appeal or judged as final and binding in the course of the 12 months prior to the time the request was filed.
The complete text of the relevant statutory provisions (viz. articles 191 to 217) may be consulted following the link provided below under "More information".
Only the legal texts published in official form are legally binding.