French Labour Law

Paid Leave and Illness: New Rules from the Law of April 22, 2024

DAIRIA Law · 2026-06-09 · 7 min

Paid Leave and Illness: New Rules from the Law of April 22, 2024

Law No. 2024-364 of April 22, 2024, relating to various adaptations to European Union law in areas such as the economy, finance, ecological transition, criminal law, social law, and agriculture (referred to as the “DDADUE” law), has significantly modified the rules concerning the accrual of paid leave during periods of sick leave. This long-awaited reform finally aligns French law with European Directive 2003/88/EC and jurisprudence from the Court of Justice of the European Union. Below is an analysis of the new provisions and their practical implications.

Context: Compliance with European Law

Article 7 of Directive 2003/88/EC of November 4, 2003, concerning certain aspects of the organization of working time, guarantees every worker a right to annual paid leave of at least 4 weeks. The Court of Justice of the European Union (CJEU) has consistently ruled since its Schultz-Hoff decision of January 20, 2009 (C-350/06) that this right cannot be made conditional on actual work performed: an employee on sick leave continues to accrue leave entitlements.

Previously, the former Article L3141-5 of the French Labour Code allowed the assimilation of periods of absence due to non-work-related illness to actual working time only up to a continuous duration of one year, and only for work-related illnesses and accidents. There was no such provision for non-work-related illness; employees on ordinary sick leave simply did not accrue any paid leave.

In two landmark decisions on September 13, 2023 (n° 22-17.340 and 22-17.638), the French Court of Cassation made a historic reversal by disregarding the provisions of the Labour Code that were contrary to European law, acknowledging that employees on sick leave must continue to accrue leave entitlements. The law of April 22, 2024, has legislatively confirmed this solution.

The new Article L3141-5-1 of the Labour Code, established by the law of April 22, 2024, now provides that periods of absence due to non-work-related illness or accident are to be treated as periods of actual working time for the determination of leave duration. However, this assimilation is capped at 2 working days of leave per month of absence, amounting to 24 working days (4 weeks) per year.

This cap of 2 days per month (as opposed to 2.5 days under general law) corresponds to the minimum guaranteed by the European directive, which is 4 weeks of leave per year. The legislator has chosen not to fully align the rights of employees on non-work-related sick leave with those of active employees, who accrue 2.5 working days per month.

In summary: An employee absent for the entire year due to non-work-related illness accrues 24 working days of leave (4 weeks), compared to 30 working days (5 weeks) for an employee who has worked the entire year. The 5th week of leave is not granted during ordinary sick leave.

For absences resulting from a work-related accident or occupational illness, the law of April 22, 2024, has amended Article L3141-5 of the Labour Code to remove the previous one-year limit. From now on, periods of absence for work-related accidents/occupational illnesses are treated as actual working time without any duration limitation, and employees accrue their full leave entitlements, which is 2.5 working days per month (30 days per year, corresponding to the 5 legal weeks).

This development is significant: under the previous regime, an employee on leave for a work-related accident for over a year would stop accruing paid leave. This is no longer the case.

Mechanism for Carrying Over Unused Leave

The law of April 22, 2024, established a new Article L3141-19-1 of the Labour Code which creates a right to carry over accrued but unused paid leave due to sick leave. This mechanism operates as follows:

When an employee is unable to take their leave due to sick leave, the accrued leave is carried over. The employer must, within one month of the employee’s return to work, inform the employee by any means that provides a certain date:

  • The number of days of leave they have available
  • The date until which these days can be taken

The employee then has a period of 15 months from that information to take their carried-over leave. After this period, unused leave is permanently lost, provided the employer has met their information obligation. If the employer fails to inform the employee, the 15-month period does not commence, and the leave remains indefinitely carry-over-able.

In the event of continued sick leave beyond the accrual period, the accrued leave is automatically carried over. The carry-over period of 15 months begins at the end of the accrual period during which the leave was accrued. If the leave extends beyond this 15-month period, the unused leave is lost.

Essential Employer Obligation: The notification to the employee regarding their leave rights and carry-over deadlines is critical. In the absence of this information, the employee retains indefinitely their rights to carry-over leave. Employers thus have a strong interest in formalizing this communication in writing (registered letter, hand delivery with acknowledgment, email with read receipt).

Retroactivity of the Law: Rights Acquired Since December 2009

One of the most remarkable aspects of the law of April 22, 2024, is its partially retroactive nature. Article 37 of the law provides that the new provisions concerning leave accrual during non-work-related sick leave apply retroactively to periods of sick leave occurring after December 1, 2009.

This date corresponds to the enforcement of the Lisbon Treaty, which gave the Charter of Fundamental Rights of the European Union (Article 31 of which enshrines the right to annual paid leave) binding legal force.

In practice, employees who were deprived of paid leave during non-work-related sick leave between December 1, 2009, and the effective date of the law can claim the unpaid leave. However, this right is framed by several limits:

  • A limitation period of 2 years: the claim must be made within 2 years of the enactment of the law (until April 24, 2026)
  • The 2 days per month cap: claims are limited to 2 working days of leave per month of non-work-related sick leave
  • The 15-month carry-over period: previously accrued leave that has not been taken within 15 months after the end of the relevant accrual period will be lost

Practical Obligations for Employers

The law of April 22, 2024, imposes several concrete obligations on employers:

  • Update Payroll Software: Leave balances must now include accrual during non-work-related sick leave (2 days/month) and work-related accidents/occupational illnesses without duration limitation.
  • Inform Employees Returning from Leave: In the month following the return, inform the employee of the number of available leave days and the deadline for taking them.
  • Manage Retroactive Claims: Address employees’ claims for the period prior to the law, checking periods of sick leave and calculating the theoretically acquired rights.
  • Financial Provisioning: Set aside provisions for leave accrued during sick leaves and for potential retroactive claims.

Summary Table of Leave Rights

To clarify the new rules, here is a summary of leave rights according to the employee’s situation:

  • Active Employee: 2.5 working days per month, or 30 days (5 weeks) per year
  • Employee on Non-Work-Related Sick Leave: 2 working days per month, or 24 days (4 weeks) per year
  • Employee on Work-Related Accident/Occupational Illness: 2.5 working days per month, with no duration limit, or 30 days (5 weeks) per year
  • Employee on Maternity/Paternity Leave: 2.5 working days per month (full assimilation, unchanged)

Outstanding Questions and Necessary Vigilance

Despite the clarification brought by the law of April 22, 2024, several questions remain open for discussion:

  • Compliance of the 2-day cap: Some authors question the compatibility of the 2 working days per month cap for non-work-related sickness with the principle of equal treatment.
  • Interaction with Collective Agreements: Some agreements provide more favorable terms regarding paid leave during illness, which continue to apply.
  • Calculation of Paid Leave Indemnity: The method for calculating the indemnity (maintenance of salary or one-tenth) can raise difficulties for periods of sick leave.

The law of April 22, 2024, represents a major evolution in the law concerning paid leave. Employers must urgently adapt their practices and management tools. Given the complexity of the new rules and the risk of retroactive claims, consulting with a specialized labor law attorney is strongly recommended.

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