Paid Leave and Sick Leave 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 economy, finance, ecological transition, criminal law, social law and agriculture (known as the “DDADUE” law), has 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 EU 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: 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 annual paid leave of at least 4 weeks. 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 L.3141-5 of the French Labour Code (Code du travail) treated periods of absence due to non-occupational illness as equivalent to actual working time only within a continuous limit of one year, and solely for occupational illness and workplace accidents. No such equivalence was provided for non-occupational illness: an employee on ordinary sick leave simply accrued no paid leave at all.

In two landmark judgments of 13 September 2023 (Nos. 22-17.340 and 22-17.638), the French Supreme Court (Cour de cassation) made a historic reversal by setting aside the provisions of the Labour Code that were contrary to EU law, recognising that employees on sick leave must accrue leave entitlements. The Law of 22 April 2024 enshrined this solution in statute.

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 equivalent to periods of actual work for the purpose of determining the duration of leave. However, this equivalence is capped at 2 working days 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 EU 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 employees at work, 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 entire year. The fifth week of leave is not accrued during ordinary sick leave.

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

For absences following 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 due to AT/MP are now treated as equivalent to actual working time without any time limit, and the employee accrues their full leave entitlement, i.e. 2.5 working days per month (30 days per year, corresponding to the statutory 5 weeks).

This change is significant: under the former regime, an employee on leave following 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 L.3141-19-1 of the French Labour Code establishing a right to carry over paid leave accrued but not taken because of sick leave. This mechanism works as follows.

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

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

The employee then has a period of 15 months from that notification to take the carried-over leave. After this period, untaken leave is definitively lost, provided that the employer has duly complied with 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 carriable.

Where 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.

A key 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, delivery by hand against acknowledgment of receipt, or email with acknowledgment of 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 partially retroactive nature. 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 occurring after 1 December 2009.

This date corresponds to the entry into force of the Treaty of Lisbon, 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, 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 2-year limitation period (forclusion): the claim must be brought within 2 years of the entry into force of the law (i.e. by 24 April 2026)
The cap of 2 days per month: claims are 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 after 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 to work, 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 before 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:

Employee at work: 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 any 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 provided by the Law of 22 April 2024, several questions remain open:

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 more favourable provisions on paid leave during illness, which continue to apply
Calculation of the paid-leave allowance: the method for calculating the allowance (maintenance of salary or the “one-tenth” rule) may raise difficulties for sick-leave periods

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 support 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 periods as equivalent to actual working time, thereby strengthening employee protection.

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 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, giving effect to entitlements accrued since December 2009, thereby ensuring continuity and protection of employee rights.