Paid leave in the event of non-occupational illness: what changes?

As a reminder, on March 11, 2024, the Council of State issued an opinion on the acquisition of paid leave for non-professional illness and laid the groundwork for future legislative changes.

This notice followed 3 judgments in case-law issued by the Court of Cassation on September 13, 2023, in which it recognized the right of the employee to be able to obtain days of paid leave during a work stoppage for sickness or non-occupational accident.

Acquisition of 2 days of leave per month for non-occupational diseases

Article 37 of the DDADUE Act establishes the acquisition of 2 working days off per month during periods of non-occupational illness (i.e. 24 days per year).

With respect to the application of this new provision, the Act states that, for the period after 1^er december 2009, the employee may invoke the benefit ofat least 4 weeks of paid annual leave with his employer in respect of absences due to non-occupational illness. The employee shall to base its action on European Union law before the French judge.

Past sickness leave: what is the deadline for action?

The important topic of retroactivity in the recognition of paid leave entitlements resulting from non-occupational illness was also addressed.

The time limit for action depends on the employee's situation:

• the employee is no longer linked to his employer (due to voluntary departure, dismissal or retirement): the 3-year limitation period to act as compensation for paid leave will apply. It will hinder ongoing or future actions brought by employees who have left their employer more than 3 years before bringing the matter before the judge;
• the employee is still linked to his employer at the time of the request: he will have a two years from the entry into force of the new law to take legal action to claim leave with pay for prior periods.
  This time limit will apply even if the employer does not provide information.

Validation of a 15-month deferral period for leave earned before or during a sick leave

With regard to the carry-over of leave acquired before or during a sick leave (professional or non-professional), the law provides that the period of carry-over of leave acquired may not be less than 15 months.

The law responds to two situations:

• for carry-overs of accrued leave not used due to the expiry of the period of leave taken as a result of sick leave (which also entitles to paid leave), a 15-month carry-over period commencing when work is resumed (provided that the employer has informed the employee of his rights);
• for leave entitlements acquired during very long periods of sick leave and comprising several entitlement periods, a period for the carry-over of entitlements acquired during an absence for sickness is introduced. It shall start at the end of the vesting period if, on that date, the employment contract is suspended for at least one year due to illness or accident.
  After a 15-month periodHowever, leave entitlements will expire permanently, even if the employee is still absent due to his illness and because of the suspension of his contract, he could not be informed of his entitlements by his employer.
  The Act specifies that if the employer was able to inform the employee because the employee returned before the expiry of the 15-month deferral period, the starting point of the remaining portion of the deferral period will be the date on which the information was issued by the employer.