Law firm specialising in employment law
and social security law.
Law firm specialising in employment law
and social security law.
From now on, employees absent from work due to illness, whether work-related or not, are entitled to paid leave.
It's a small revolution that began on September 13, 2023, when the Social Chamber of the French Supreme Court (Cour de cassation) issued 5 rulings (n°22-17.638 ; n°22-17.340 ; n°22-17.342 ; n°22-10.529 ; 22-11.106), sounding the death knell for previous legislative provisions, and continued with the entry into force of the DDADUE n°2024-364 law adopted on April 22, 2024.
In fact, this came as no surprise: we had already known for several years that the French Labor Code was not in line with European regulations.
Indeed, while the European Working Time Directive of November 4, 2003 and the Charter of Fundamental Rights of the European Union provide for a fundamental right to rest for workers of at least 4 weeks per year, whatever their situation (actual working time or absence), Articles L.3141-3 and L.3141-5 of the French Labor Code limit the acquisition of paid leave to employees on sick leave due to an accident at work or occupational disease, and this within the first year of sick leave. After this first year, or when employees were off work for non-occupational reasons, no entitlement to paid leave arose.
On September 13, 2023, in the absence of any transposition of European law by the French State (for which it was recently condemned - CAA de Versailles, july 17, 2023, n°22VE00442), and after numerous warnings in its annual report, the Cour de cassation decided to encourage the legislature to modify the rules applicable to employees on sick leave.
Employers may have been prepared, but the blow was no less violent, given that the Cour de cassation decided to grant employees an unrestricted right ; i.e. unlimited in terms of the number of days acquired (which it did not limit to 4 weeks per year, as European law does, and which seemed to cover both statutory and contractual leave), and in duration (since the Cour de cassation seemed to indicate that the employee's rights could not be time-barred if he had not been able to take the leave to which he was entitled, which soon proved inapplicable in practice, since most employers had not hitherto granted any special rights to employees on sick leave.
Following the government's consultation of the Conseil d'Etat (opinion delivered on March 13, 2024) and an opinion from the Conseil constitutionnel (opinion of February 8, 2024), the law containing various provisions adapting to European Union law was passed on April 22, 2024, and published in the Journal officiel on April 23, 2024, to come into force on April 24, 2024.
The DGT subsequently issued a number of practical clarifications in April 2024, followed by a “Q&A” now integrated into the digital Labor Code.
It's with all these texts that we now have to work, to best apply the paid leave reform and the new rules that have been in force for a few weeks now.
Let's take a look at these new rules in 12 questions.
All these provisions must of course be reviewed in the light of the provisions of the collective bargaining agreement and the collective status applicable within each company. Caution should be exercised in this respect, as some industry-level collective bargaining agreements already contain more favorable provisions for the acquisition of paid leave during sick leave than the new legal provisions.
The law applies to employees in the private sector, and excludes civil servants and public-sector employees.
It applies to employees on sick leave from April 24, 2024 or, in the case of retroactive provisions, from December 1, 2009.
It should be noted that the DGT has interpreted the text rather broadly, considering all work stoppages to have taken place during the reference period in effect when the law comes into force, i.e., for companies applying the classic provisions, the reference period running from June 1, 2023 to May 31, 2024. This point remains unresolved, however, as the law does not explicitly state whether or not April 24, 2024 is the exact date for applying these rules.
What do we mean by “work stoppage”?
The term “work stoppage” covers all stoppages that can be considered as justifying an absence and suspension of the employment contract. This includes, in particular, sick leave issued on a standard CERFA form by the attending physician, as well as hospitalization certificates. Criteria such as social security compensation or entitlement to a period of salary continuation are not taken into consideration: these criteria are of little importance, since the condition of interest to us is the existence of a work stoppage in due and proper form.
On the other hand, any employee who is absent without having been able to justify the period of absence by a valid work stoppage must be excluded from the scope of the law.
A number of rules are unchanged by the entry into force of the DDADUE law.
In fact, only the rules governing the acquisition of paid leave are modified by these provisions. Employers should therefore bear in mind that a certain number of rules still need to be applied, including in the context of the current reform:
- the equivalence rules, which allow an employee who has worked for periods equivalent to one month's work to obtain a full entitlement to paid leave (either per 4-week cycle, or per 20-day cycle when the employee works 5 days out of 7, for example - article L.3141-4 of the French Labor Code)
- the proportionality rule, which requires that the reduction in vacation entitlement be proportional to the exact duration of the absence - article L.3141-6 of the French Labor Code
- the rounding rule, which requires the employer to round up the number of paid vacations earned over the reference period at the end of the acquisition period - Article L.3141-7 of the French Labor Code.
- the assimilation of certain absences to actual working time for the acquisition of paid leave (maternity leave, paternity leave, childcare leave, etc.)
- rules governing additional paid leave, such as contractual leave or additional leave for dependent children or seniority leave
- and finally, the rules governing he splitting of paid vacation outside the statutory period.
On this particular issue, a distinction still needs to be made between employees who are off work for work-related or non-work-related reasons.
- With regard to non-occupational stoppages, since April 24, 2024, periods of absence are now considered as actual working time for the acquisition of vacation entitlements (article L.3141-5 of the French Labor Code).
Please note : this rule does not mean that non-work-related absences should be treated as working time in all circumstances! In fact, this rule only applies to the acquisition of paid leave. To date, for example, seniority is still suspended for employees on non-work-related sick leave.
Acquired entitlement is equivalent to 2 working days per month, i.e. a maximum of 24 working days per reference period (article L.3141-5-1 of the French Labor Code).
- In the case of stoppages of occupational origin, employees are now entitled to paid leave equivalent to that of employees actually at work, i.e. 2.5 working days per month, or a maximum of 30 working days over the reference period (articles L.3141-3 and L.3141-5 of the French Labor Code).
For these stoppages, the one-year limit previously applicable for the acquisition of paid leave is abolished.
Vacation pay has also undergone a number of changes, since it is now calculated according to the rules applicable to the period of sick leave in question. For employees who are off work due to illness, the reference salary for calculating holiday pay will be 80% of the salary the employee would have received had he/she been working (article L.3141-24 of the French Labor Code).
The subject of commuting accidents has not been addressed by the legislator. It may be advisable to refer to case law on commuting accidents, which treats this type of accident as an accident at work, and therefore as actual working time, for the purposes of acquiring paid leave (Cass. Soc. July 3, 2012, n°08-44.834).
These rules are set out in articles L.3141-19-1 and -2 of the French Labor Code.
The reform of paid leave introduced a carry-over period for paid leave earned but not taken during the period in which it was scheduled to be taken, due to a work stoppage. By law, this deferral period is set at 15 months, whatever the cause of the stoppage. It may be increased by collective agreement at branch or company level.
For work stoppages lasting less than a year, the 15-month deferral is provided for when the employee is unable to take his or her earned leave during the planned period due to the work stoppage.
Note: the term “unable to take leave” is open to interpretation. There is no doubt that disputes will arise over the interpretation of this notion. Caution is called for on the employer's side.
- For stoppages of at least one year at the end of the vesting period, paid leave earned during the stoppage is deferred for 15 months.
At the end of the deferral period, if the employee has not taken his or her paid leave, it is forfeited.
However, it's not all that simple!
Indeed, the classic case law on paid leave still seems relevant here, namely that the employee must have been put in a position to take his leave by the employer: failing this, he does not lose his right to leave. This is now established case law in leave matters, which in recent years has tended to cover a wide range of situations, making disputes over paid leave fairly complex and unfavorable to the employer.
During the deferral period, the employer retains the power to impose the dates of paid leave, whatever the nature of the leave, whether it was earned before a stoppage, during a stoppage, or after a stoppage, and whether or not it was deferred.
This means that, provided he complies with the legal and regulatory rules and information deadlines laid down in the Labor Code or the applicable collective bargaining agreement, the employer is fully entitled to impose the dates of leave, even if deferred, on his employee.
The starting point of the deferral period varies according to the duration of the work stoppage (article L.3141-19-3 of the French Labor Code).
- For work stoppages of less than one year, the starting date of the 15-month deferral period is the date of receipt of the employee's information on his or her entitlements after returning to work.
- For work stoppages lasting at least as long as the vesting period, the 15-month deferral period starts automatically, without any specific information being given to employees.
On the other hand, if the employee returns to work before the 15-month period has expired, the deferral period is suspended, and the employee must be informed of his or her entitlement to paid leave before the remainder of the deferral period runs out.
Employees must be informed both of the number of days off they are entitled to, and the date up to which paid leave may be taken (article L.3141-19-3 of the French Labor Code).
This information must be provided within one month of the employee returning to work.
Please note! There are still a few grey areas in this respect.
- On the one hand, the text indicates that the deferral period begins on the date the employee “receives” the information. In other words, it is the date on which the information is received that counts, which is not neutral since, in the event of litigation and contestation of the actual receipt of the information by the employee, the employer will have to be able to demonstrate that he not only sent the document, but also that the employee received it.
The question will therefore be whether, in the event of a dispute, the information can really be sent via a pay slip, as the text indicates, or whether it is better to be much more cautious and adopt more secure methods of proof, such as registered letter with acknowledgement of receipt, or hand-delivered letter against receipt, at the risk of triggering considerable practical difficulties and administrative red tape.
- On the other hand, the term “resumption” remains to be clarified. Indeed, if the employee has returned to work and the work stoppage has ended, what happens if the employee has to undergo a return visit that does not take place on the day of the actual return to work? It is not certain that, in such a case and while the employment contract is still suspended in the absence of a return visit, the information given prior to the visit would be considered valid and compliant with the new rules.
The question of the impact of non-compliance with the aforementioned one-month time limit also remains unanswered. If the general interpretation is in favor of the possibility of informing after this one-month period, which would therefore only result in a postponement of the start date of the period, this remains uncertain, and we'll have to wait for the first legal cases to find out more on this question.
Yes, the law contains retroactive provisions, which are deemed to have been applicable since December 1, 2009.
To understand how retroactivity works in terms of paid leave, we need to distinguish between employees who are still working and those who have left the company.
It should be noted from the outset that employees who are still in post can only make claims for the deduction from their pay slips of paid leave that should have been granted. They cannot claim vacation pay, unlike employees who have left the company, who can only make financial claims.
- For current employees, the DDADUE law provides for retroactive application from December 1, 2009 of the rule governing the acquisition of paid leave during non-work-related sick leave, up to a limit of 2 working days per month and a maximum of 24 working days per year. The 15-month deferral period for paid leave, the information requirements in the event of deferral, and the method for calculating vacation pay in the event of non-occupational illness are also retroactive.
As a result, employees suffering from work-related accidents and illnesses will not benefit from the new provisions from December 1, 2009! This means that their entitlement to paid leave is limited to the first year of absence from work, and remains in force until April 23, 2024. A number of questions remain unanswered in this respect, including whether employees in such a situation could obtain additional entitlements in the event of litigation on the basis of the September 13, 2023 rulings, which made no distinction according to the nature of the work stoppage, or whether employees with occupational injuries and diseases since June 1, 2023, i.e. since the start of the vesting period during which the new law came into force, could possibly benefit from the new provisions from that date.
Generally speaking, employees still in employment will have until April 23, 2026, i.e. a period of 2 years from the law's entry into force, to take legal action.
- However, there is no provision for employees who are no longer in post, who benefit from the standard provisions for back pay. This means that the 3-year statute of limitations applies from the end of the employment contract. Pursuant to article L.3245-1 of the French Labor Code, employees may claim compensation for paid vacations if their contract was terminated less than 3 years prior to the legal action, and claims for back pay may cover a period of up to 3 years prior to termination.
This ceiling means that employees who have already benefited from an overall entitlement of 24 working days, all types of paid leave and all periods combined, over reference periods prior to April 24, 2024, will no longer be able to request additional paid leave.
They will be considered to have fulfilled their entitlement, even if their period of absence from work did not entitle them to days off.
Far from it.
Employees who have signed settlements covering compensation for paid leave should not be able to benefit from the new provisions, nor should employees who are already involved in litigation against their employer and who have not made a claim of this type when the limitation period has expired.
In this respect, it is worth noting the divergent positions taken by the lower courts regarding the admissibility of new claims for the acquisition of paid leave for periods of sick leave when proceedings are already underway.
The Court of Cassation recently issued a ruling on this subject, reiterating the application of standard rules of civil procedure to such claims (Cass. Soc. July 10, 2024 n°22-16805).
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