Birth Leave Implementing Decree in France: The Employer’s Guide
As of today, the birth leave (“congé de naissance”) announced by the Government as part of the parental leave reform has not been the subject of any implementing decree, for want of an adopted legislative vehicle. Under current positive law, your company remains bound to apply the only mechanism in force: the 3-day birth leave provided for in Article L.3142-1 of the French Labour Code (leave for family events), which may be combined with paternity and childcare leave. As long as no regulatory text is published in the Journal officiel, no new obligation falls on your payroll department.
This point is essential for your processes: many communications confuse the existing birth leave (3 days borne by the employer) with the reformed “birth leave” project (announced to replace parental leave, not yet in force). DAIRIA Law draws the distinction and secures your HR decisions.
The Birth Leave Currently in Force: Your Actual Obligations
The birth leave you must grant today is based on Article L.3142-1, 3° of the French Labour Code. It confers a right to 3 days on the occasion of each birth in the employee’s household, or of the arrival of a child placed with a view to adoption.
Key points of attention for your management:
- Beneficiary: this leave is granted to the father, but also, where applicable, to the mother’s spouse or partner or to the person bound to her by a PACS (civil partnership). You must not restrict access to the biological father alone.
- Minimum duration: the 3 days constitute a legal floor. A collective bargaining agreement or company-level agreement may provide for a longer duration, which you are required to respect.
- Maintenance of salary: these days are treated as effective working time and paid by the employer with no length-of-service condition (Article L.3142-2). Your employer account bears them in full.
- Taking the leave: the days must be taken within a reasonable period surrounding the event. In practice, custom and case law allow the leave to be taken around the birth, without requiring strict consecutive days.
This leave is not to be confused with the paternity and childcare leave (“congé de paternité et d’accueil de l’enfant”, Article L.1225-35 of the French Labour Code), which is compensated by the Social Security and not by the employer. The two mechanisms are cumulative.
The Reform Project: What Explains the Search for an “Implementing Decree”
The search query “birth leave implementing decree” reflects the expectation created by the Government’s announcements regarding the overhaul of parental education leave into a new mechanism presented under the name “birth leave”. This project aims to establish a leave that is better paid and shorter than the current parental leave (Article L.1225-47 of the French Labour Code).
Key points to bear in mind so you can anticipate without over-transposing:
- No new obligation as long as the law has not been passed. An announcement, a report or a bill creates no enforceable right. Your company does not have to amend its agreements or its payroll on the basis of a governmental intention.
- The decree will follow the law, not the other way around. An implementing decree can only clarify a statute that has already been enacted. No amendment to Article L.1225-47 has been adopted to this effect as of today.
- Monitoring recommended. We advise your HR department to set up monitoring of the Journal officiel and not to anticipate the parameters (duration, compensation rate, articulation with parental leave) until the final text is known.
DAIRIA Law warns you: over-transposing a reform that is not in force may create a company practice (“usage d’entreprise”) that you will then have to terminate through a burdensome formal procedure. Caution is therefore called for in your internal memos and your responses to employees.
Articulation with Paternity Leave: Securing Your Payroll
Confusion between the mechanisms is the leading source of payroll error. Here is the map your payroll manager must master:
| Mechanism | Legal basis | Duration | Funding |
|---|---|---|---|
| Birth leave | Art. L.3142-1 Labour Code | 3 days (minimum) | Employer |
| Paternity and childcare leave | Art. L.1225-35 Labour Code | 25 days (or 32 in the case of multiple births) | Social Security (daily allowances / IJSS) |
The paternity leave includes a mandatory period of 7 days (including the 3 birth-leave days) that you cannot circumvent (Article L.1225-35 of the French Labour Code, which governs the prohibition on employing the second parent after the birth). Your paternity daily allowances (IJSS) are paid by the CPAM (local health insurance fund) subject to eligibility conditions; we recommend checking the salary advance (“subrogation”) arrangement provided for in your agreement.
Operational Recommendations for Your HR Department
To secure your compliance while awaiting the reform, DAIRIA Law recommends:
- Auditing your collective agreements: check whether a branch-level or company-level agreement provides for a birth-leave duration longer than the statutory 3 days, since it will be binding on you.
- Making your payslips reliable: distinguish the “birth leave” line (paid by the employer) from the “paternity leave” line (IJSS salary advance where applicable).
- Framing your responses to employees: formalise an HR memo recalling the law in force, without promising any future mechanism.
- Organising legal monitoring: appoint a point person to track the possible publication of a law and then of its decree.
DAIRIA Law supports mid-sized companies in revising their family-leave agreements and secures the payroll treatment of each mechanism.
Frequently Asked Questions
Has the birth leave implementing decree been published in the Journal officiel?
No. As of today, no implementing decree relating to the so-called “birth leave” reform (replacement of parental leave) has been published, for want of an enacted law providing for it. Only the 3-day birth leave under Article L.3142-1 of the French Labour Code is applicable. Your company therefore has no new obligation to implement.
How many days of birth leave must I grant my employee?
At least 3 days, pursuant to Article L.3142-1 of the French Labour Code. These days are paid by your company and treated as effective working time. However, check your collective agreement: a longer contractual duration will be binding on you.
Is birth leave borne by the employer or by the Social Security?
The 3-day birth leave (Article L.3142-1) is paid in full by the employer. It must not be confused with paternity and childcare leave (Article L.1225-35), which is compensated by the Social Security through daily allowances (IJSS), possibly with a salary advance (“subrogation”) depending on your agreement.
Should I anticipate the future reform in my company agreements?
We advise against it as long as the law has not been passed and its decree published. Anticipating an uncertain mechanism risks creating a binding company practice that is difficult to terminate afterwards. It is better to organise monitoring and adjust your agreements once the final text is known.
Can birth leave and paternity leave be combined?
Yes. The 3 days of birth leave are cumulative with paternity and childcare leave. In practice, the second parent’s mandatory post-birth period incorporates these 3 days. Your payroll department must manage the two lines separately to avoid any URSSAF reassessment.
Secure Your Family Leave with DAIRIA Law
Between the mechanism in force and a reform that has been announced but not completed, the legal risk lies in confusing the regimes. DAIRIA Law works alongside your management and your HR department to audit your collective agreements, ensure reliable payroll treatment of birth leave and paternity leave, and provide monitoring of the publication of any future decree. Contact us for a compliance review of your parenthood-related leave.