France Update: Paid Leave and Illness

Law No. 2024-364 of 22 April 2024 brings into line with European law the national rules applicable to the acquisition of paid leave during periods of sick leave due to accident or illness. These new provisions came into force on April 24, 2024.

As a reminder, this text follows the judgments handed down on September 13, 2023, by which the Court of Cassation ruled that employees on sick leave due to illness or accident, regardless of the origin and duration, acquire paid leave, in accordance with the case law of the CJEU.

ASSIMILATION OF PERIODS OF SUSPENSION OF THE EMPLOYMENT CONTRACT TO ACTUAL WORK
The following are now considered as periods of actual work for the purpose of determining the duration of the leave:

Periods during which the performance of the employment contract is suspended due to an accident at work or occupational disease (AT-MP), including those that exceed 1 year;
Periods during which the performance of the employment contract is suspended due to work stoppage related to an accident or illness not of an occupational nature, again without a time limit.

ACQUISITION OF TWO WORKING DAYS OF LEAVE PER MONTH FOR NON-OCCUPATIONAL DISEASES
The law limits the duration of leave acquired for a period of suspension of the employment contract for an accident or illness of non-occupational origin to 4 weeks. Thus, the employee only acquires 2 working days of leave per month, up to a maximum of 24 working days per reference period (in accordance with EU law).

On the other hand, the vesting rules do not change for employees on sick leave for AT-MP, who continue to acquire 2.5 working days of leave per month, up to a maximum of 30 working days per reference period (i.e. 5 weeks).

MAXIMUM PERIOD OF 15 MONTHS FOR CARRYING OVER PAID LEAVE
A maximum carry-over of 15 months is set for employees who are unable to take, during the period of leave, all or part of their earned leave, due to a sick leave due to illness or accident, regardless of the origin (professional or not).

A company or establishment agreement or, failing that, a branch agreement or agreement may, however, set a period of deferral longer than that provided for by law.

This deferral period begins on the date on which the employee receives information from the employer, in the month following their return to work, on their rights to paid leave.

By way of derogation from this rule, and in order to avoid unlimited accumulation when the illness extends over several years, for employees who have been off work due to illness or accident for at least one year, the 15-month deferral period begins at the end of the reference period, without the employer being required to inform him. If, when the employee resumes work, the 15-month deferral period has not expired, it is suspended until the employee has received information from the employer on his or her rights to paid leave.

CALCULATION OF THE HOLIDAY ALLOWANCE
For the calculation of the paid holiday allowance according to the “tenth” rule, only 80% of the reference remuneration relating to absences due to accidents or illnesses of non-occupational origin is taken into account. The “salary continuation” rule could therefore prove to be more advantageous for employees.

For employees on sick leave for AT-MP, the reference remuneration is taken into account in full.

OBLIGATION TO INFORM EMPLOYEES OF THEIR RIGHTS TO PAID LEAVE
At the end of a sick leave due to illness or accident, regardless of the origin (occupational or non-professional) and the duration, the employer is required to inform the employee:

The number of days of leave they have;
The date until which these days of leave can be taken.
This formality must be completed within one month of returning to work.

The information shall be provided by any means that confers a certain date of receipt, in particular by a mention on the pay slip.

RETROACTIVITY OF THE ACT
The new rules for the acquisition of leave during an accident or illness of non-occupational origin, as well as for the carry-over of leave rights, are applicable for the period between 1er December 2009 (start of the infringement of EU law) to 24 April 2024 (date of entry into force of the new law), subject to final court decisions or more favourable contractual stipulations.

Over this period, the additional leave to be claimed is limited to 24 working days per reference period, after taking into account the days already acquired. Paradoxically, retroactivity does not apply to the acquisition of leave during a sick leave for AT-MP beyond 1 year.

For employees whose employment contract is in progress, the legal action is subject to a limitation period of 2 years from the entry into force of the law, i.e. until 24 April 2026.

Employees whose employment contract has been terminated may claim compensation in lieu of paid leave within the limit of the three-year statute of limitations.

Companies must, without delay, set up the payroll (acquisition of 2 or 2.5 working days of leave per month, allowance equal to 80% or 100% of the reference salary, counter of paid leave carried over, information on pay slips, etc.).

Ginestié Magellan Paley-Vincent, France, a Transatlantic Law International Affiliated Firm.  

For further information or for any assistance please contact france@transatlanticlaw.com

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