On April 23, 2024, a reform for the rights of French employees came into force with the publication in the Journal Officiel of law no. 2024-364 of April 22, 2024. This law, containing various provisions for adapting to European Union law, includes in the Article 37 a significant reform concerning the acquisition of paid leave during periods of sick leave.
Employers will now have to include periods of sick leave in the calculation of paid leave, thus ensuring continuity of employees’ rights even in the event of temporary incapacity to work. This measure is designed to guarantee greater security and fairness for French employees, in line with European Union requirements in terms of social protection.
1. Alignment with European standards
This reform, which comes into force immediately, is designed to bring French legislation into line with European directives on social law and worker protection.
Until now (1), paid leave was calculated based on the employee’s actual working time with the same employer, at the rate of 2.5 working days per month worked, up to a maximum of 30 working days per reference period.
While certain periods of absence, such as maternity leave, paternity leave and industrial accidents (article L3141-5 of the French Labor Code), were already counted as effective working time for the purposes of acquiring paid leave, other periods of absence were not counted as effective working time, which result in a loss of paid leave days for employees who were ill for a long period.
Until now, the provisions of article L.3141-5 of the French Labor Code excluded periods of absence due to non-work-related illness or accident, and periods of absence due to work-related accident or occupational disease (AT/MP), from being considered in determining paid leave entitlement.
Such a provision was deemed contrary to the Court of justice of the European Union case law, and its application was consequently rejected by the Cour de cassation on September 13, 2023 (2).
These latest decisions prompted the government to table an amendment to the bill to adapt national law to European Union law. As a result, this law was published in the JO. This law allows the alignment of national legislation with European rules and ensures better social protection for all employees. With this new provision, employees will now be able to continue acquiring paid leave entitlements, whatever the nature of their sick leave.
2. Informing employees returning from sick leave of their entitlement to paid leave
Article 37 of the law April 22, 2024 introduces significant changes in the way employees are informed of their entitlement to paid leave when they return from sick leave.
At the end of a period off work due to illness or accident (occupational or non-occupational), the employer will be required to inform the employee, within ten days of his or her return to work:
• the number of days of leave available ;
• the date up to which these leave days may be taken (3).
This information should be sent by any means that confers a certain date of receipt.
The main purpose of this new obligation on the employer to provide information is to ensure that the employee is aware of his or her entitlement to paid leave within one month of returning to work. This provision takes account of the position of the Cour de Cassation, which held that the limitation period for paid leave compensation only began to run if the employer could prove that he or she had taken the necessary steps to ensure that the employee could effectively exercise his or her right to leave.
3. Accumulation of paid leave limited in time
Articles L.3141-19-1 et seq. of labour law Code set out a maximum carry-over period for the use of earned paid leave. The employee has 15 months in which to benefit of earned paid leave.
Regarding the starting point of this deferral period, a distinction must be made according to the duration of the stoppage:
• If the suspension of the employment contract lasted less than a year, the deferral period begins on the date on which the employee receives the information concerning days of earned leave (4);
• If the suspension of the employment contract lasted more than one year, the deferral period begins on the date on which the reference period for which the leave was earned comes to an end.
4. Application of the law over time
In accordance with Article 37 II of the law of April 22, 2024, subject to final court rulings or more favourable contractual stipulations in force on the date leave entitlements are acquired, the provisions of this article are applicable for the period running from December 1, 2009 to the date of entry into force of the said law.
However, for the same period, the additional leave acquired in application of the provisions mentioned in the first paragraph may not, for each reference period mentioned in the same article, exceed the number of days enabling the employee to benefit from twenty-four working days of leave, after taking into account the days already acquired, for the same period, in application of the provisions of the same code in their wording prior to the said law.
Any action to enforce an employment contract for the granting of days of leave in application of the law of April 22, must be brought on pain of foreclosure, within two years of the entry into force of the said law, so on April 23, 2026, at the latest.
(1) Article L.3141-4 of the French Labor Code.
(2) Cass, 13 september 2023 n° 22-17.340 et 22-17.638.
(3) Article L.3141-19-3 labour law code.
(4) Article L3141-19-3 labour law code.
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