Entitlement to paid leave while off work

After the Senate, final adoption by the National Assembly on 10 April 2024 of the “DDADUE” bill bringing the Labour Code into line with European law.

As a reminder, in a number of rulings dated 13 September 2023, the Cour de cassation ruled that the provisions of the Labour Code that do not give rise to the acquisition of leave entitlements in the event of an accident or illness of a non-occupational nature are contrary to the Charter of Fundamental Rights of the European Union (no. 22-17.340; no. 22-17.638; no. 22-10.529).

Given the risk of legal uncertainty involved, on 15 November 2023 the Government initiated the fast-track procedure for the vote on a bill containing various provisions for adapting to European Union law in the areas of the economy, finance, ecological transition, criminal law, social law and agriculture.

From now on, any period of absence from work due to illness or accident, whether occupational or non-occupational, is considered as time actually worked, enabling the employee to earn paid holiday.

Under the terms of the new article L. 3141-5-1 of the French Labour Code, the period of absence from work due to a non-occupational accident or illness generates an entitlement to paid holiday of 2 working days per month, up to a maximum of 24 working days, i.e. 4 weeks per year.

The text therefore introduces a different system for employees who are off work due to a non-occupational accident or illness and employees who are actually working or off work. for occupational accident or illness, for which the law provides 2.5 days’ leave per month, i.e. 5 weeks per year.

As a result, an employee may be subject to two different holiday entitlement schemes for the same reference acquisition period.

DEFERRAL OF PAID LEAVE AND THE CORRESPONDING OBLIGATION TO PROVIDE INFORMATION :

As a matter of principle, for employees who are off work and therefore unable to take their paid leave, the new law introduces a carry-over period of 15 months for earned paid leave not taken, at the end of which the leave would expire definitively (Art. L. 3141-19-1 c. trav.).

A company or establishment agreement or, failing that, an industry agreement may set a longer deferral period (Art. L. 3141-21-1
c. trav.).

At the same time, a new obligation to provide information has been introduced for the employer, who must notify the employee within 1 month of his return to work after an illness or accident (Art. L. 3141-19-3 c. trav.):

• The number of days of holiday available;
• The date up to which they can be taken.

This information may be communicated to the employee by any means giving a certain date to its reception, in particular via the pay slip.

In the absence of a collective agreement, the starting point of the deferral period will be set as follows:

• Leave acquired prior to sick leave: 15 months from the date on which the employer informed the employee of his entitlement, after the employee returns to work;
• Leave earned during sick leave of less than 1 year: 15 months from the date on which the employer informs the employee of his entitlement, after the employee returns to work;
• Leave earned during sick leave of 1 year or more: 15 months from the end of the period during which the leave was earned. If the employee returns to work before the deferral period has expired, it will be suspended until the employer has informed him of his rights.

RETROACTIVITY OF THE LAW :

In order to secure the situation in the past, the law limits the retroactivity of the provisions to the period running from 1 December 2009 to the date on which the law comes into force, i.e. 24 April 2024. However, it should be noted that, for each reference period, the additional leave earned may not exceed the number of days enabling the employee to benefit from 24 working days of leave, after taking into account the days already earned.

TIME LIMITS FOR APPEALS :

Different rules will apply depending on whether the employee is still in post or has left the company:

• For employees still in post, the law introduces a time limit of 2 years from the date of entry into force of the law, i.e. 24 April 2024, to take legal action for the granting of days of leave.
• In the case of former employees, they will be subject to the standard three-year limitation period set out in Article L3245-1 of the French Labour Code. They will therefore be able to obtain compensation for paid holidays, but subject to clarification, if the appeal takes place within the three-year period, only the rights that would have been acquired in respect of the last three years of the contract may be claimed. However, for the purposes of determining the gross pay used to calculate holiday pay for the application of the 10th rule, the pay taken into account is limited to 80%.