Acquisition of paid leave during sick leave: the new legal framework

The Law 2024-364 of April 22, 2024, containing various provisions bringing French law into conformity with European Union law, particularly in the fields of markets, finance and labor law, was passed on April 23, 2023. It stipulates that any period of absence from work due to illness or accident, whether work-related or not and whatever its duration, must give entitlement to paid leave.

This action by the legislature puts an end to the legal uncertainty for employers caused by the reversal of the decisions of September 13, 2023 by the employment section of the Supreme Court de cassation. As indicated in a previous edition of this newsletter, those decisions had declared the provisions of article L 3141-5 of the Labor Code, which excluded periods of absence due to non-occupational illness or accident and, beyond one year, periods of absence due to occupational accident or illness (AT/MP), from being taken into account in determining paid leave entitlements to be contrary to European law.

Companies now have a clearer framework for recalculating the paid leave entitlements of their employees on sick leave for the current and previous vesting periods.

All sick leave gives rise to paid leave

All periods of suspension of the employment contract due to accident or illness, including those exceeding one year, are now considered as periods of actual work for the purposes of determining employees' entitlement to paid leave (article L 3141-5 of the French Labor Code).

However, periods of absence from work due to non-occupational accident or illness, although treated as actual work, only entitle employees to 2 working days' leave per month, up to a maximum of 24 working days per reference period (new article L 3141-5-1 of the French Labor Code), which corresponds to the 4-week leave entitlement guaranteed by European law. The corresponding vacation pay will take into account 80% of the remuneration received while the employee was off work.

On the other hand, the acquisition of 2.5 days per month and 30 working days per year remains unchanged for work stoppages resulting from an accident or illness of occupational origin, with vacation pay paid at 100% of the remuneration received during the stoppage.

Mandatory information to be given to the employee

A new article L3141-19-3 of the French Labor Code requires employers to inform employees within one month of their return from sick leave (whatever the origin and duration), by any available means which provides a date certain upon receipt, including the pay slip, of the number of days of leave available to them and the date up to which these days of leave may be taken.

Deferral of leave

An employee who has not been able to take all or part of his or her paid leave during the leave-taking period applicable in the company may defer it for a period of 15 months (a company or establishment agreement or, failing that, a branch agreement, may provide for a longer period, but not a shorter one, nor for a different starting point for the 15-month deferral). The 15-month carry-over period begins on the date on which the employee receives notification from the employer, after returning to work, of the number of days of leave earned during the sick leave and the final date for taking them.

If the employee has been absent for more than one year including the entire reference period, the 15-month carry-over period automatically begins at the end of the reference period in respect of which the leave was earned (June 1).

If the employee returns to work before the end of the deferral period, the 15-month period is suspended until the employee has received the information required when returning to work.

This obligation to regularize leave only concerns the days acquired during sick leave, and not leave taken during the reference year but not taken by employees. Unless there is a provision in the agreement or a unilateral commitment by the employer authorizing deferral, these days are in principle lost.

Retroactive application to December 1, 2009

The law provides for limited retroactivity of its provisions relating to the acquisition and deferral of paid leave entitlements.

The acquisition of paid leave during non-occupational sick leave, up to a limit of 24 working days per year, will be retroactive to December 1, 2009 for employees still contractually bound to their employer. However, they will only have two years from April 24, 2024, the date of promulgation of the law, to claim them and take legal action if necessary, i.e. until April 23, 2026. If no action is taken within this period, vacation entitlements will be lost.

Employees whose contracts were terminated before the law came into force will only benefit from retroactivity for a maximum of three years and will only be able to claim compensation equivalent to three years' paid leave.