In France, the Labor Code does not provide for the acquisition of paid leave during sick leave of non-occupational origin.
But that should change soon.
In an opinion delivered on Wednesday, the Council of State called on the government to respect European law, which provides the opposite: “Employees must acquire sick leave, regardless of the origin of the illness (professional or not). )”, writes the highest administrative court.
However, they must be limited to four weeks per year, while the minimum duration of paid leave is five weeks per year in France, and four in Europe.
“The legislator is not required, to ensure the conformity of French law with the Constitution and the law of the European Union, to confer on periods of absence due to illness the same effect of acquisition of leave rights as periods of effective work,” specifies the Council of State.
Also read Paid leave granted during sick leave: 5 questions to understand the issues
In its opinion, the highest administrative court relies in particular on the judgment rendered in September 2023 by the Court of Cassation, which required the government to revise labor law to comply with the European directive.
The Constitutional Council, however, ruled in the opposite direction last February, considering that the current Labor Code does not infringe the principles of the Constitution.
To make its decision, the government therefore questioned the Council of State.
The latter also limited to three years the retroactivity of compensation due to employees who have been ill and lost leave since December 1, 2009, the date of entry into force of the Lisbon Treaty.
“The action for payment may relate to the sums due for the last three years from this day or, when the employment contract is terminated, to the sums due for the three years preceding the termination of the contract”, specifies the opinion.
An amendment in a future bill
Employers' organizations had strongly protested against the acquisition of paid leave during absences due to illness, and were alarmed by the amount of sums that companies could have had to pay retroactively.
“Our work, carried out in concert with the government, has borne fruit,” said Medef President Patrick Martin in a message on the social network
His CPME counterpart François Asselin estimated on the same network that “an absurdity has finally been corrected”.
Paid leave acquired during sick leave.
Our work, carried out in conjunction with the government, has borne fruit.
Retroactivity is limited to 3 years and the calculation of compensation will be based on 4 weeks/year and not 5. It remains to be translated into law.https://t.co/fzZZsLTGTW
— Patrick Martin (@PatrickMartin_1) March 14, 2024
Concerning the possibility of carrying over leave acquired during sick leave, the Council of State decided that it must be at least 15 months, the Court of Justice of the European Union requiring that this duration be “substantially” greater to the reference period for acquiring the right to annual leave, which is one year.
The Minister of Labor, Catherine Vautrin, promised in mid-January that “our country will obviously comply with European legislation”.
While wanting to transpose the European directive, the government had called for limiting the acquisition of paid leave in the event of non-professional illness to four weeks.
The Council of State indicates that the government intends to propose an amendment as part of a bill adapting to European Union law which must be examined in the Assembly from Monday.