Acquisition of paid leave and illness: A new law

In its decisions of September 13, 2023, the French Supreme Court ruled that employees on sick leave of non-occupational origin are entitled to the same paid leave as those on sick leave of occupational origin, in application of European law (and in particular article 32§1 of the Charter of Fundamental Rights).

Given that the provisions of the French Labor Code (article L. 3141-5) were not compliant, and in view of the major risks of litigation, the legislator had to intervene. Bill no. 2041, containing various provisions for adapting to European Union law in the fields of economics, finance, ecological transition, criminal law, labor law and agriculture, therefore proposes to address the issue. Immediately afterwards, the Prime Minister referred the matter to the Conseil d'Etat, which has just given its opinion, broadly validating the amendment. It should be noted, however, that the Conseil rejected the principle of a law that would validate the previous illegal provisions.

An amendment to Bill no. 2041 containing various provisions adapting French law to European law has been presented by the government in order to draw the consequences of the September 2023 rulings and thus bring French law in line with European law. The law is due to be examined by a joint parliamentary commission, set up on March 20, starting on April 4, with adoption scheduled for the following week.

The law may be referred to the French Constitutional Court, but it is unlikely to censure the new vacation entitlement scheme, given its previous decision on the subject.

The law should therefore come into force by summer.

This amendment :

• Removes the limit on paid leave when the employee's absence is caused by an accident at work or an occupational disease;
• Endorses the acquisition of paid leave during periods of absence from work caused by illness or a non-occupational accident, with a limit on the acquisition of paid leave during these periods to two working days per month (i.e. a maximum of 24 days per year - which represents the right enshrined in European law);
• Applies the law retroactively from December 1, 2009 (subject to courts decisions which have become final and more favorable contractual provisions);
• Acquired additional leave may not enable an employee, for a given reference period, to acquire more than 24 working days of leave, after taking into account days already acquired; 
• Provides for a carry-over period of up to 15 months for employees who are unable, due to illness or accident, to take all or part of their earned leave during the leave-taking period. This period runs from the date of notification by the employer (see last paragraph), or by exception from the end of the accrual period when the employee's absence has lasted more than one year and the employment contract remains suspended;
• Makes this carry-over period retroactive to December 1, 2009 (subject to courts decisions which have become final and more favorable contractual provisions);
• Provides for a two-year foreclosure period from the date of entry into force of the law. This will oblige current employees to take action within two years to assert the new rights they hold under the provision (without affecting ongoing litigation, for which the three-year statute of limitations on salary claims applies);
• Requires the employer to inform the employee by any means, within ten days of resuming work, of the vacation entitlements available to him/her and the deadline for exercising them. In its current wording, this obligation seems to apply to all sick leave, regardless of its duration, which is surprising. Nor is this obligation accompanied by any sanction at this stage.

Authored by Alexandra Tuil and Baptiste Camus.