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Human Resources
Paid leave in the event of non-occupational illness: changes in examples
Publié le 08 avril 2024 - Mise à jour le 19 juin 2024 - Directorate for Legal and Administrative Information (Prime Minister)
The Act of 22 April 2024 on various provisions for adaptation to European Union law (DDADUE) brings the Labor Code into line with regard to the acquisition of paid leave for non-occupational illness. These new provisions came into force on April 24, 2024. Sample applications have just been published by the Ministry of Labor in the Digital Labor Code.
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).
Reminder
For occupational diseases, the employee now acquires 2.5 days of leave per month.
Example :
For the vesting period from 1er june 2024 as of may 31, 2025, an employee absent for 2 months (august-september 2024) for non-occupational illness acquires 29 days of paid leave as follows:
- of 1er June 2024 to July 31, 2024: 5 days of earned leave (2 x 2.5 days);
- of 1er august 2024 to september 30, 2024 (period of absence for non-occupational disease) 4 days of earned leave (2 x 2 days) ;
- of 1er October 2024 to May 30, 2025: 20 days of earned leave (8 x 2.5 days).
With respect to the application of this new provision, the Act states that, for the period after 1er 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.
Please note
An arrangement must be put in place by the employer so that the employee does not exceed the 24 days of paid annual leave in respect of his absences.
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 2 situations.
Situation 1
For carry-overs of unused accrued leave due to the expiry of the period of leave taken as a result of sickness (which also entitles the holder to paid leave), carry-over period of 15 months starting when work starts be open (provided that the employer has informed the employee of his rights).
Example :
When the employee returns to work
The employee is absent for non-occupational illness of 1er January 2025 to April 2, 2025, when he returns to work.
He receives the information from his employer on April 15, 2025.
The balance of leave that he could take before his illness can be deferred until July 15, 2026 (the end of the deferral period).
Situation 2
For accrued leave entitlements during very long periods of sick leave and including several accrued periods, one 15-month deferral period for vested rights during sickness absence shall be established.
He starts at the end of the vesting period if, on that date, the employment contract has been suspended for at least one year due to illness or accident.
At the end of this 15-month deferral period, leave entitlements shall expire permanently if the employee has not resumed work because of illness and because of the suspension of his contract, he could not be informed of his rights by his employer.
Example :
If the employee, who has been sick for more than one year, does not return to work at the end of the 15-month deferral period
The employee has been absent since April 26, 2024.
As of August 31, 2026 (the end of the deferral period), he is still absent.
In this case, the employee loses the accrued leave rights during his sick leave.
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.
Example :
If the employee, who has been sick for more than a year, returns to work before the expiry of the 15-month deferral period
The employee is absent due to illness of the 1er April 2024 to July 31, 2025. He returns to work on the 1ster August 2025.
The deferral period runs from 31 May 2025 to 31 August 2026 (where the duration of the judgment is longer than one year, the deferral period starts at the end of the vesting period which is here 31 May 2025).
The employer notified the employee on August 7, 2025, before the end of the 15-month deferral period. That date shall be the starting point of the remaining part of the carry-over period. This will end on September 7, 2026 (not August 31, 2026).
FYI
A carry-over period of more than 15 months may be fixed by company or establishment agreement (or, failing that, by agreement or industry agreement).
Obligation to inform the employer
Following a work stoppage for sickness or accident, the employer must inform the employee of the number of days off and the the date on which these days of leave may be taken.
This information must be provided within one month of the employee's return to work.
Any means of giving a certain date for receipt of such information may be used:
- registered letter with acknowledgement of receipt;
- letter delivered for own use against discharge;
- mail;
- pay stub.