France’s Birth Leave Implementing Decree: An Employer’s Overview
To date, the birth leave (“congé de naissance”) announced by the French Government as part of the parental leave reform has not been the subject of any implementing decree, as no enabling legislation has been adopted. Under current law, your company remains bound to apply the only scheme currently in force: the 3-day birth leave provided for under Article L.3142-1 of the French Labour Code (leave for family events), which can be combined with paternity and childcare leave. As long as no regulatory text is published in the Official Journal (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 proposed reformed “birth leave” (announced to replace parental leave, not yet in force). DAIRIA Avocats 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 entitles the employee 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 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 (“pacte civil de solidarité”, a civil partnership). You must not restrict access to the biological father alone.
- Minimum duration: the 3 days constitute a statutory floor. A collective bargaining agreement or a company-level agreement may provide for a longer duration that you are required to observe.
- Salary maintenance: these days are treated as actual working time and paid by the employer with no length-of-service requirement (Article L.3142-2). Your employer account bears them in full.
- Taking the leave: the days must be taken within a reasonable period around the event. In practice, custom and case law allow the leave to be taken on the occasion of the birth, without requiring strictly consecutive days.
This leave should not be confused with 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 Social Security and not by the employer. The two schemes are cumulative.
The reform project: why there is a search for an “implementing decree”
The query “birth leave implementing decree” reflects the expectation created by government announcements regarding the overhaul of parental education leave (“congé parental d’éducation”) into a new scheme presented under the name “birth leave”. This project aims to introduce 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 anticipate without over-implementing:
- No new obligation as long as the law is not 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 government intention.
- The decree follows 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 to date.
- Monitoring recommended. We advise your HR department to set up monitoring of the Official Journal and not to anticipate the parameters (duration, compensation rate, coordination with parental leave) until the final text is known.
DAIRIA Avocats issues a warning: over-implementing a reform that has not yet entered into force can create a company practice (“usage d’entreprise”) that you would then have to terminate under a demanding formal procedure. Caution is therefore advised in your internal memos and your responses to employees.
Coordination with paternity leave: securing your payroll
Confusion between the schemes is the leading source of payroll error. Here is the mapping your payroll manager must master:
| Scheme | 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 for multiple births) | Social Security (IJSS daily allowances) |
Paternity leave includes a mandatory period of 7 days (including the 3 days of birth leave) 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 verifying the salary continuation (“subrogation”) provided for in your agreement.
Operational recommendations for your HR department
To secure your compliance while awaiting the reform, DAIRIA Avocats recommends:
- Audit your collective agreements: check whether an industry-wide or company-level agreement provides for a birth leave duration exceeding the statutory 3 days, as it would be binding on you.
- Ensure accurate payslips: distinguish the “birth leave” line (paid by the employer) from the “paternity leave” line (salary continuation of IJSS where applicable).
- Frame your responses to employees: formalise an HR memo restating the law in force, without promising any future scheme.
- Organise legal monitoring: appoint a point person to track the possible publication of a law and then its decree.
DAIRIA Avocats supports mid-sized companies (ETI) in revising their family leave agreements and secures the payroll treatment of each scheme.
Frequently asked questions
Has the birth leave implementing decree been published in the Official Journal?
No. To date, no implementing decree relating to the so-called “birth leave” reform (replacement of parental leave) has been published, as no enacted law provides 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, under Article L.3142-1 of the French Labour Code. These days are paid by your company and treated as actual working time. However, check your collective bargaining agreement: a longer contractual duration would be binding on you.
Is birth leave borne by the employer or by Social Security?
The 3-day birth leave (Article L.3142-1) is paid in full by the employer. It should not be confused with paternity and childcare leave (Article L.1225-35), which is compensated by Social Security via daily allowances (IJSS), possibly with salary continuation (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 scheme risks creating a binding company practice that is difficult to terminate afterwards. It is preferable to organise monitoring and adjust your agreements once the final text is known.
Do birth leave and paternity leave combine?
Yes. The 3 days of birth leave combine 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 Avocats
Between the scheme in force and a reform that has been announced but not finalised, the legal risk lies in confusing the two regimes. DAIRIA Avocats works with your management and HR department to audit your collective agreements, ensure reliable payroll treatment of birth leave and paternity leave, and monitor the publication of any future decree. Contact us for a compliance review of your parenthood-related leave.