Paid Leave and Sick Absence in France: The 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 economy, finance, ecological transition, criminal law, social law and agriculture (known as the “DDADUE” law), substantially amended 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 for employers.
Background: Compliance with European 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 at least 4 weeks of paid annual leave. The Court of Justice of the European Union (CJEU) has held, in settled case law since the Schultz-Hoff judgment of 20 January 2009 (C-350/06), that this right cannot be made subject to a condition of actual work: an employee on sick leave continues to accrue leave entitlements.
However, the former Article L3141-5 of the French Labour Code only treated periods of absence for non-occupational illness as equivalent to actual working time within the limit of one uninterrupted year, and solely for occupational illnesses and workplace accidents. For non-occupational illness, no such equivalence was provided: an employee on ordinary sick leave simply accrued no paid leave.
In two major judgments of 13 September 2023 (No. 22-17.340 and 22-17.638), the Cour de cassation (French Supreme Court) carried out a historic reversal by disregarding the provisions of the Labour Code that were contrary to European law, 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 L3141-5-1 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 work for the purpose of determining the duration of leave. However, this equivalence is capped at 2 working days (jours ouvrables) of leave per month of absence, i.e. 24 working days (4 weeks) per year.
This cap of 2 days per month (instead of the 2.5 days under ordinary law) corresponds to the minimum guaranteed by the European directive, namely 4 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 (4 weeks), compared with 30 working days (5 weeks) for an employee who worked the whole 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 L3141-5 of the Labour Code to remove the previous one-year limit. From now on, periods of AT/MP absence are treated as actual working time without any time limit, and the employee accrues full leave entitlement, 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 stopped accruing paid leave. This is no longer the case.
The Carry-Over Mechanism for Untaken Leave
The law of 22 April 2024 created a new Article L3141-19-1 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. The employer must, within one month following the return to work, inform the employee by any means providing a certain date of:
- The number of days of leave available to the employee
- The date until which those days may be taken
The employee then has a period of 15 months from that notification in which to take the carried-over leave. After this period, untaken leave is definitively lost, provided the employer has properly fulfilled its information obligation. If the employer fails to 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 signed receipt, email with acknowledgement of receipt).
The Retroactivity of the Law: Rights Accrued Since December 2009
One of the most notable aspects of the law of 22 April 2024 is its partial retroactivity. Article 37 of the law provides that the new provisions relating to leave accrual 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 conferred binding legal force on the Charter of Fundamental Rights of the European Union (whose Article 31 enshrines the right to paid annual leave).
In practice, employees who, between 1 December 2009 and the entry into force of the law, were denied paid leave during non-occupational sick leave may claim the leave they did not accrue. However, this right is subject to several limits:
- A two-year limitation period (délai de forclusion): the claim must be brought within two years of the entry into force of the law (i.e. until 24 April 2026)
- The cap of 2 days per month: the claim is limited to 2 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 Employer Obligations
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 (2 days/month) and during AT/MP leave without any time limit
- Inform employees returning from leave: within one month of the return, inform the employee of the number of days of leave available and the deadline for taking them
- Handle retroactive claims: process employee claims relating to the period prior to the law, by checking sick-leave periods 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 according to the employee’s situation:
- Active employee: 2.5 working days per month, i.e. 30 days (5 weeks) per year
- Employee on non-occupational sick leave: 2 working days per month, i.e. 24 days (4 weeks) per year
- Employee on AT/MP leave: 2.5 working days per month, without time limit, i.e. 30 days (5 weeks) per year
- Employee on maternity/paternity leave: 2.5 working days per month (full equivalence, unchanged)
Outstanding Questions and the Need for Vigilance
Despite the clarification brought by the law of 22 April 2024, several questions remain under debate:
- The compliance of the 2-day cap: some commentators question whether the cap of 2 working days per month for non-occupational illness is compatible with the principle of equal treatment
- Interaction with collective bargaining agreements: some agreements provide for more favourable provisions on paid leave during illness, which continue to apply
- Calculation of the paid-leave indemnity: the method of calculating the indemnity (salary maintenance or the “one-tenth” method) may raise difficulties for sick-leave periods
The law of 22 April 2024 represents a major development in paid-leave law. 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 amends the accrual of paid leave during non-occupational sick leave by treating such absence as equivalent to actual working time, thereby providing enhanced protection for employees.
How does the law of 22 April 2024 affect sick leave?
This law now allows employees on non-occupational sick leave to accrue up to 24 working days of paid leave per year, thereby ensuring better compliance with European law.
What are employees’ rights following a workplace-accident absence under the law of 22 April 2024?
Employees on leave following a workplace accident have their paid-leave entitlements recognised without any 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, allowing rights accrued since December 2009 to take effect, thereby ensuring continuity and protection of employees’ rights.