Earthquake in French labor law: I am on sick leave, but I continue to receive paid leave!
After the Court of Cassation put an end to a debate and a contradiction between French law and European law. by a series of judgments dated September 13, 2023 on the acquisition of paid leave by an employee during their work stoppage, the National Assembly adopted the draft amendment submitted on this point on March 18, 2024, thus marking an unprecedented turning point in the evolution of the rights of employees on sick leave.
But, precisely, what does the French Labor Code and European law provide on this point?
What does the current French Labor Code say?
Currently, the Labor Code does not allow employees on sick leave of non-professional origin to acquire paid leave, unless the employer provides for it, for the entire duration of the work stoppage.
What does European law say?
European law states that when the employee cannot work due to his state of health, his absence must not have an impact on the calculation of his paid leave rights.
The primacy of European law by the Court of Cassation
The provisions of French law were deemed contrary to European Union law by the Court of Cassation, in a series of judgments rendered on September 13.
The highest judicial court considers, in fact, that employees on sick leave for non-professional reasons must also be able to acquire paid leave.
Indeed, the Court of Cassation, on the basis of the Charter of Fundamental Rights of the European Union, in its article 31, paragraph 2, on the right to rest, thus rejects the provisions of current French law which it judges not to be in conformity with European Union law.
The Court of Cassation refers more precisely to a European directive from 2003, which obliges all member states to take the necessary measures to guarantee all employees an annual leave of at least four weeks, whether they are on sick leave or not.
Compliance with European Union law: a turning point in the acquisition of rights by employees on sick leave?
The government having the obligation to comply with European Union law, a draft amendment aimed at the acquisition of paid leave days by an employee on sick leave was submitted to the National Assembly and adopted by the latter, in March 2024.
This text provides that:
“An employee on sick leave of non-professional origin will have the right to acquire two working days of paid leave per month, within the limit of 24 days (i.e. four weeks, working days generally extending from Monday to Saturday) per year. »
As an extension of this amendment, the government introduces a right to postpone leave that the employee could not take due to illness or accident.
This period is set at 15 months and will start from the date on which the employee receives information from his employer on the leave available to him, this must be given after the employee returns to work.
Note that the amendment to the executive requires employers to send employees information on their right to paid leave and the time period they have to request it “within ten days following return to work after sick leave”.
What are the provisions for employees on leave prior to the publication of this law?
The government amendment provides that this new procedure can be applied retroactively for judgments dating back up to December 1, 2009.
For those whose employment contract ended before the law came into force, the measure will only be retroactive over a maximum of three years.
For employees wishing to take action, during the execution of their contract, to claim paid leave that they should have acquired during periods of sick leave, they will have two years, from the entry into force of the law, to claim their past rights.
In practice, what does this look like?
Before, with a few exceptions, in certain sectors of activity, I was absent for 1 month on sick leave and at the end of the month, I noticed on my pay slip that I had not acquired my 2.5 working days of paid leave:
From now on, my sick leave will not have an impact on the number of days of paid leave.
As an employer, would you like to be supported with complaints from your employees on sick leave in order to see things more clearly?
The LEGALPROTECH-AVOCATS firm is at your side!
Social law is one of his skills, so he will be able to give you the benefit of all his legal practice in this area in order to meet your needs!
Don’t hesitate any longer, contact us, we will be happy to provide you with an answer as soon as possible.
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By Iris MOUNIEN
Article published on April 2, 2024. Its content reflects the context of its publication.
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