Paid leave: sick leaves count!

Employees are entitled to 5 weeks of paid leave per year acquired at the rate of 2.5 working days of leave per month of actual work.

Employees who are absent from the company continue to earn paid leave during these absences if the latter are assimilated to actual working time by the French Labour Code. As such, only leaves such as family leaves (adoption leave, maternity leave, etc.) and paid leave from the previous year must be taken into account in the calculation of employees’ paid leave entitlements.

Which means, sick leaves caused by non-occupational accidents or diseases do not constitute actual working time according to the French Labour Code, and therefore, strictly speaking, they do not give rise to paid leave entitlements. As for sick leaves following an accident at work, a commuting accident, or an occupational disease, they are only taken into account up to a maximum of one year.

For several years, European judges have been saying that these provisions of the French Labour Code, that hamper employees from acquiring paid leave during their sick leaves, are contrary to European law.

Compliance with European law

The non-compliance of the provisions of the French Labour Code with European law has recently led the French Court of Cassation to no longer apply them in the disputes it handles.

Therefore, in two recent cases, the French Court of Cassation decided that the employees had acquired paid leave during all their sick leaves. This solution was based on Article 31, §2 of the Charter of Fundamental Rights of the European Union, which guarantees every worker an annual period of paid leave.

Thus, from now on, the French Court of Cassation assimilates to actual working time:
- sick leaves caused by non-occupational accidents or diseases.
- sick leaves following an accident at work, a commuting accident, or an occupational disease, without any time limit.

In other words, employers must take all sick leaves into account when calculating their employees’ paid leave entitlements.

It should be noted that many collective agreements already require employers to take into account their employees’ all sick leaves when calculating their paid leave entitlements.

Social Cassation, September 13, 2023, No. 22-17340

Social Cassation, September 13, 2023, No. 22-17638