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

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 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).

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.

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.

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.