Paid leave and sickness

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

As a reminder, this text follows the judgments rendered on September 13, 2023, by which the Court of Cassation ruled that employees on sick leave due to illness or accident, whatever the origin and duration, acquire leave paid, 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 determination of the duration of leave:

• Periods during which the execution of the employment contract is suspended due to work accident or occupational illness (AT-MP), including those which exceed 1 year;

• Periods during which the execution of the employment contract is suspended due to work stoppage linked to an accident or illness not of a professional nature, again without limitation of duration.

Acquisition of two working days of leave per month for non-occupational illnesses

The law limits the duration of leave acquired during a period of suspension of the employment contract to 4 weeks for an accident or illness of non-professional origin. Thus, the employee only acquires 2 working days of leave per month, within the limit of 24 working days per reference period (in accordance with EU law).

On the other hand, the acquisition rules do not change for employees on sick leave for AT-MP, who continue to acquire 2,5 working days of leave per month, within the limit of 30 working days per reference period ( i.e. 5 weeks).

Maximum period of postponement of paid leave of 15 months

A maximum deferral of 15 months is set for employees who are unable to take, during the leave period, all or part of their acquired leave, due to work stoppage due to illness or accident. , whatever the origin (professional or not).

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

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

As an exception to this rule, and in order to avoid unlimited accumulations 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 on end of the reference period, without the employer being required to inform it. If, when returning to work, the 15-month deferral period has not expired, it is suspended until the employee has received information from the employer about their paid leave rights.

Calculation of paid vacation compensation

For the calculation of paid vacation compensation according to the “tenth” rule, the reference remuneration relating to absences due to accident or illness of non-professional origin is only taken into account up to 80%. The “salary maintenance” rule could therefore prove 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 about their rights to paid leave

At the end of a work stoppage due to illness or accident, whatever the origin (professional or not) and the duration, the employer is required to inform the employee of:

• The number of days off he has;
• The date until which these days of leave can be taken.

This formality must be completed within the month following the return to work.

The information is provided by any means conferring a certain date on its receipt, in particular by a mention on the pay slip.

Retroactivity of the law

The new rules for acquiring leave during an accident or illness of non-occupational origin, as well as for deferring leave rights, are applicable for the period between 1^er December 2009 (start of the violation of EU law) to April 24, 2024 (date of entry into force of the new law), subject to court decisions becoming final or more favorable conventional stipulations.

During 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 work stoppage for AT-MP beyond 1 year.

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

Employees whose employment contract is terminated can claim compensation for paid leave within the three-year limitation period.

Companies must, without delay, proceed to configure payroll (acquisition of 2 or 2,5 working days of leave per month, compensation equal to 80% or 100% of the reference salary, counter of carried-over paid leave, information on pay slips, etc.).