Paid leave and sickness: the law to comply with European law applies from April 24, 2024

The provisions of Law 2024-364 establishing the new rules for acquiring paid leave during work stoppage for professional or non-professional illness or accident came into force on April 24, 2024 .

Legislative intervention was necessary and expected. It follows the judgments of the Court of Cassation of September 13, 2023 (Cass. Soc. September 13, 2023, n°22-17340; 22-17638; 22-14043, 22-10529) proceeding to a direct application of European law and disregarding the provisions of the labor code.

We present below a summary of the main contributions of the law, which will not fail to raise important practical questions.

What does the law which entered into force on April 24, 2024 provide?

This law, in accordance with European Union law, establishes a right to acquire paid leave during sick leave , whatever the origin.

However, it makes a distinction depending on whether the work stoppage is of professional origin (work accident or occupational illness) or not (“ordinary” illness or accident in private life). In fact, the employee whose work stoppage is of professional origin will have to acquire 2.5 working days of leave per month (i.e. 30 working days of paid leave in the event of stoppage over the entire reference year), when the in "ordinary" illness or resulting from a non-professional accident will only acquire two working days per month (i.e. 24 working days of paid leave in the event of sick leave over the entire reference year), unless more favorable conventional provisions are provided.

How to apply these provisions for the past period?

In essence, the date from which all employees could invoke a right to paid leave during work stoppage due to occupational or non-professional illness or accident is the date of entry into force of the Lisbon Treaty , December 1, 2009. Retroactivity of the law of April 22, 2024 therefore applies from December 1, 2009 .

However, the legislator intended to regulate this retroactivity. Thus, the law provides that, for the period from December 1, 2009 to April 24, 2024, the additional leave thus acquired may not, for each annual reference period, exceed 24 working days of leave, after taking into account the days already acquired for the same period under the old provisions of the labor code.

For example, if an employee was absent due to non-occupational illness for one month in any reference period before the law came into force, he or she would normally be entitled to two working days of leave in this respect. However, if during the reference period concerned, the person concerned was able to acquire at least 24 working days of paid leave, he will not be able to request, today, the benefit of the two working days acquired during his previous stoppage.

Likewise, if an employee has been absent due to illness of non-professional origin for six months over any reference period before the law comes into force and has only acquired 15 working days of paid leave over this period ( i.e. 2.5 working days for each of the 6 months worked), he may request 9 working days of paid leave for his illness (to reach the minimum of 24 working days over the same reference period).

What about the carryover of leave acquired before or during sick leave, whether professional or not?

To try to keep it simple, we can summarize things as follows:

- the carryover period for earned paid leave not taken due to work stoppage is 15 months;

- this period of 15 months runs from the information provided by the employer, which must be carried out in the month of the employee's return from absence , on the number of days available to the employee and the postponement deadline;

These rules apply:

- leave acquired before the period of absence;

- leave acquired during the period of absence due to illness, except in the case of absence due to long-term illness (corresponding to several consecutive reference periods). In this last hypothesis, when the leave was acquired during sick leave, the carryover period may begin, not when returning to work but, even in the absence of information, at the end of the period. acquisition of rights if, on that date, the employment contract has been suspended for at least one year. If this deferral period has not expired on the date of resumption of work, it is suspended and will run again from the date on which the employee receives the information from the employer (number of days available to him , postponement deadline, etc.). On the other hand, leave acquired by absent employees and which was postponed for 15 months at the end of this period was lost if the employee did not return during these 15 months. This rule prevents the accumulation of paid leave when the work stoppage exceeds one year.

Employers must therefore check pay slips and carry out an assessment of rights acquired, rights carried over and those still exercisable.

For example, an employee was absent from February 1, 2021 to June 15, 2023. He had acquired 20 days of paid leave from June 1, 2020 to January 31, 2021. Under the new legal provisions, he acquired 4 days of leave during from February 1, 2021 to May 31, 2021 (i.e. 24 “guaranteed” days – 20 acquired). He then acquired 24 days from June 1, 2021 to May 31, 2022. On this date, his contract has been suspended for more than a year. The period of deferral of leave (48 acquired days) therefore begins on June 1, 2022 for a period of 15 months, i.e. until August 31, 2023. When it resumes on June 15, 2023, this deferral period therefore ran for 12, 5 months and is suspended, due to the resumption, until the employer informs him of his rights to paid leave. In our opinion, the employee should then use his acquired days before August 31, 2023.

What time period do employees have to apply to the courts for the granting of vacation days acquired between December 1, 2009 and April 23, 2024?

The law regulates the time limit for legal action by the employee in office within a period of 2 years from its promulgation, i.e. until April 24, 2026.

On the other hand, it does not contain any provision concerning employees whose employment contract(s) in force during the period of retroactive application of the law have been terminated. For these employees, the three-year limitation period applicable to salary claims should apply.