Paid Leave and Sick Leave in France: The New Rules Under the Law of 22 April 2024
Law No. 2024-364 of 22 April 2024, containing various provisions to adapt 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 changed 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: 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 a 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 conditional on 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 effective working time within the limit of 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 22-17.638), the French Cour de cassation (Supreme Court) 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 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 effective work for the purpose of determining the duration of leave. However, this treatment 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 2.5 days under ordinary law) corresponds to the minimum guaranteed by the European directive, i.e. 4 weeks of leave per year. The legislator chose not to fully align the entitlements of employees on non-occupational sick leave with those of working 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 to 30 working days (5 weeks) for an employee who worked all year. The 5th week of leave is not accrued during ordinary sick leave.
Full entitlement retained for occupational accidents/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 French Labour Code to remove the previous one-year limit. Periods of absence for AT/MP are now treated as effective 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 5 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 L3141-19-1 of the French Labour Code establishing a right to carry over paid leave that has been accrued but not taken due to sick leave. This mechanism works as follows:
Where the employee is unable to take their leave due to sick leave, the accrued leave is carried over. Within a period of one month following the 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 by which these days may be taken
The employee then has a period of 15 months from this notification to take their 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 does not 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 sick leave extends 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, email with read receipt).
Retroactivity of the law: entitlements accrued since December 2009
One of the most notable aspects of the law of 22 April 2024 is its partially retroactive nature. Article 37 of the law provides that the new provisions relating to 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 conferred binding legal force on the Charter of Fundamental Rights of the European Union (Article 31 of which enshrines the right to annual paid 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 that was not accrued. However, this right is subject to several limits:
- A two-year time bar (délai de forclusion): the claim must be brought within a period of 2 years from 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 after 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 (2 days/month) and during AT/MP leave without any 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
- Manage retroactive claims: process employee claims relating to the period prior to the law, verifying 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 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, with no time limit, i.e. 30 days (5 weeks) per year
- Employee on maternity/paternity leave: 2.5 working days per month (full treatment, unchanged)
Outstanding questions and the need for vigilance
Despite the clarification provided by the law of 22 April 2024, several questions remain open to debate:
- Conformity 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 regarding paid leave during illness, which continue to apply
- Calculation of the paid-leave allowance: the method of calculating the allowance (salary maintenance or one-tenth rule) may raise difficulties for periods of sick leave
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 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 changes the accrual of paid leave during non-occupational sick leave by treating such periods as effective 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, ensuring better compliance with EU law.
What are employees’ entitlements after leave for a workplace accident under the law of 22 April 2024?
Employees on leave for a workplace accident have their paid-leave entitlements recognised with no time limit, accruing 30 days per year, in line with 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 for safeguarding the employee’s rights.
Is the law of 22 April 2024 on paid leave retroactive?
Yes, it is partially retroactive, allowing entitlements accrued since December 2009 to take effect, thereby ensuring continuity and protection of employees’ rights.