Paid Leave and Sick Absence in France: New Rules Under the Law of 22 April 2024

Law No. 2024-364 of 22 April 2024, containing various provisions adapting French law to European Union law in the fields of economics, finance, ecological transition, criminal law, social law and agriculture (known as the “DDADUE” law), has substantially altered the rules governing the accrual of paid leave during periods of sick leave. This long-awaited reform finally brings French law into line with European Directive 2003/88/EC and the case law of the Court of Justice of the European Union. Below is an analysis of the new provisions and their practical consequences.

Background: Bringing French Law into Line with EU Law

Article 7 of Directive 2003/88/EC of 4 November 2003, concerning certain aspects of the organisation of working time, guarantees every worker the right to paid annual leave of at least four weeks. In settled case law since the Schultz-Hoff judgment of 20 January 2009 (C-350/06), the Court of Justice of the European Union (CJEU) has held that this right cannot be made subject to a requirement of actual work: an employee on sick leave continues to accrue leave entitlements.

Under the former Article L.3141-5 of the French Labour Code, however, periods of absence for non-occupational illness were treated as actual working time only within an uninterrupted period of one year, and only for occupational illnesses and workplace accidents. For non-occupational illness, no such treatment was provided: an employee on ordinary sick leave simply accrued no paid leave at all.

In two major judgments of 13 September 2023 (No. 22-17.340 and No. 22-17.638), the French Cour de cassation (Supreme Court) effected a historic reversal, setting aside the provisions of the Labour Code that were contrary to EU law and recognising that employees on sick leave must accrue leave entitlements. The law of 22 April 2024 enshrined this solution in legislation.

Accrual of Paid Leave During Non-Occupational Sick Leave

The new Article L.3141-5-1 of the French Labour Code, created by the law of 22 April 2024, now provides that periods of absence due to non-occupational illness or accident are treated as periods of actual working time for the purpose of determining the length of leave. However, this treatment is capped at two working days of leave per month of absence, i.e. 24 working days (four weeks) per year.

This cap of two days per month (rather than the 2.5 days under general law) corresponds to the minimum guaranteed by the European directive, namely four weeks of leave per year. The legislature chose not to fully align the entitlements of employees on non-occupational 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-occupational illness accrues 24 working days of leave (four weeks), compared with 30 working days (five weeks) for an employee who worked all year. The fifth week of leave is not accrued during ordinary sick leave.

Full Entitlement Maintained for Workplace Accidents and Occupational Illnesses (AT/MP)

For absences resulting from a workplace accident or occupational illness (accident du travail / maladie professionnelle, “AT/MP”), the law of 22 April 2024 amended Article L.3141-5 of the French Labour Code to remove the previous one-year limit. Periods of absence for AT/MP are now treated as actual working time without any time limit, and the employee accrues full leave entitlements, i.e. 2.5 working days per month (30 days per year, corresponding to the five statutory weeks).

This change is significant: under the former regime, an employee on leave for a workplace accident for more than one year ceased to accrue paid leave. This is no longer the case.

The Mechanism for Carrying Over Untaken Leave

The law of 22 April 2024 created a new Article L.3141-19-1 of the French Labour Code, establishing a right to carry over paid leave that has been accrued but not taken because of sick leave. This mechanism operates as follows:

Where the employee is unable to take their leave because of sick leave, the accrued leave is carried over. Within one month of the employee’s return to work, the employer must inform the employee, by any means providing a certain date, of:

The number of leave days available to them;
The date until which those days may be taken.

The employee then has a period of 15 months from the date of this information to take the carried-over leave. After this period, untaken leave is definitively lost, provided the employer has duly complied with its information obligation. If the employer does not inform the employee, the 15-month period does not begin to run and the leave remains indefinitely carryable.

Where the sick leave continues beyond the accrual period, the accrued leave is automatically carried over. The 15-month carry-over period begins to run at the end of the accrual period during which the leave was accrued. If the absence continues beyond this 15-month period, the untaken leave is lost.

Essential employer obligation: Informing the employee of their leave entitlements and the carry-over deadlines is decisive. In the absence of such information, the employee retains their carried-over leave entitlements indefinitely. Employers therefore have every interest in formalising this notification in writing (registered letter, hand delivery against acknowledgement of receipt, or email with read receipt).

Retroactivity of the Law: Entitlements Accrued Since December 2009

One of the most striking aspects of the law of 22 April 2024 is its partial retroactivity. Article 37 of the law provides that the new provisions on the accrual of leave during non-occupational sick leave apply retroactively to periods of sick leave after 1 December 2009.

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

In practice, employees who, between 1 December 2009 and the entry into force of the law, were deprived of paid leave during non-occupational sick leave may claim the leave not accrued. However, this right is subject to several limits:

A two-year time bar: the claim must be brought within two years of the entry into force of the law (i.e. by 24 April 2026);
The two-days-per-month cap: the claim is limited to two working days of leave per month of non-occupational sick leave;
The 15-month carry-over period: retroactively accrued leave that has not been taken within 15 months of the end of the relevant accrual period is lost.

Practical Obligations for Employers

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

Update payroll software: leave counters must now incorporate accrual during non-occupational sick leave (two days/month) and during AT/MP absences with no time limit;
Inform returning employees: within one month of the return to work, inform the employee of the number of leave days available and the deadline for taking them;
Handle retroactive claims: process employees’ claims relating to the period before the law by verifying the periods of sick leave and calculating the entitlements theoretically accrued;
Make financial provisions: set aside provisions for leave accrued during sick leave and for any retroactive claims.

Summary Table of Leave Entitlements

To clarify the new rules, here is a summary of leave entitlements depending on the employee’s situation:

Active employee: 2.5 working days per month, i.e. 30 days (five weeks) per year;
Employee on non-occupational sick leave: 2 working days per month, i.e. 24 days (four weeks) per year;
Employee on AT/MP leave: 2.5 working days per month, with no time limit, i.e. 30 days (five weeks) per year;
Employee on maternity/paternity leave: 2.5 working days per month (full treatment, unchanged).

Outstanding Questions and Necessary Vigilance

Despite the clarification provided by the law of 22 April 2024, several questions remain under debate:

The compliance of the two-day cap: some commentators question whether the cap of two working days per month for non-occupational illness is compatible with the principle of equal treatment;
Interaction with collective bargaining agreements: some agreements provide more favourable provisions on paid leave during illness, which continue to apply;
Calculation of the paid-leave allowance: the method of calculating the allowance (salary maintenance or the “one-tenth” method) may give rise to difficulties for periods of sick leave.

The law of 22 April 2024 represents a major development in the law on paid leave. Employers must adapt their practices and management tools without delay. Given the complexity of the new rules and the risk of retroactive claims, the assistance of a lawyer specialising in employment law is strongly recommended.

📚 Further Reading

Frequently Asked Questions

What is the law of 22 April 2024 on paid leave?

The law of 22 April 2024 changes the accrual of paid leave during non-occupational sick leave by treating such absences as actual working time, thereby providing enhanced protection for employees.

How does the law of 22 April 2024 affect sick leave?

The law now allows employees on non-occupational sick leave to accrue up to 24 working days of paid leave per year, ensuring better compliance with EU law.

What are employees’ rights after leave for a workplace accident under the law of 22 April 2024?

Employees on leave for a workplace accident now have their paid-leave entitlements recognised with no time limit, accruing 30 days per year in accordance with the applicable legislation.

What are the employer’s obligations regarding carried-over leave?

The employer must inform the employee of accrued but untaken leave within one month of the return to work. This notification is crucial to safeguarding the employee’s rights.

Is the law of 22 April 2024 on paid leave retroactive?

Yes, it is partially retroactive, giving effect to entitlements accrued since December 2009, thereby ensuring continuity and protection of employees’ rights.