French employees earn now paid holiday during sick leave

Up to now, the French Labour Code has provided that employees on sick leave:

  • do not earn paid leave during their absence if their illness is not work-related,
  • earn paid leave for one year only if the absence is due to an accident at work or an occupational disease.

In rulings handed down on 13 September 2023, the Cour de Cassation, highest court of France, ruled that, under European case law (ECJ), these French provisions should be set aside. It considers that the following rules should be applied:

  • employees acquire leave entitlements during sick leave;
  • employees can claim their rights retroactively for 3 years from the date on which they were informed of their rights.

These decisions have far-reaching consequences for employers.

For example, an employee on sick leave from 1 January 2018 to 31 December 2020 had not earned any paid leave during this period. He could now claim compensation for 15 weeks’ paid leave, without being barred from doing so until the employer informs him of this new right.

The government has undertaken to limit the rights acquired by employees on sick leave. In particular, legislation could be introduced to cap the amount of leave that can be earned during a period of non-work-related sick leave at 4 weeks a year.

In the meantime, if one of your employees is affected, we recommend that you take stock of the situation in order to assess and make provision for the cost of regularising paid leave entitlements.