Paid Leave In France: New Rules Applicable

• Published date: 19 November 2023
• Subject Matter: Employment and HR, Employee Benefits & Compensation, Employee Rights/ Labour Relations
• Law Firm: K&L Gates
• Author: Sarah Chihi and Christine Artus

In a series of decisions given on 13 September 2023, the French Supreme Court has overruled its previous case law regarding the paid leave entitlements of employees who are absent from work as a result of sickness, an accident at work, or parental leave, in order to align French law with European law.

The French Labor Code prevents employees from accruing paid leave: (i) during sick leave that is not due to an "occupational disease" (maladie professionnelle);¹ or (ii) beyond a period of one year in cases where the employee's absence is due to an occupational disease or a work-related accident (accident du travail).

In light of the decisions rendered on 13 September 2023, and from now on:

• Employees who are on sick leave will be entitled to accrue paid leave during their period of absence, even if the absence is not due to work accident or an occupational disease;²
• In the event of a work-related accident or occupational disease, the calculation of paid leave entitlement will no longer be limited to the first year of absence;³
• The statute of limitations for entitlement to paid leave, which is three years, does not start to run until the employer has given the employee the opportunity to exercise the right to take paid leave;⁴ and
• Paid leave entitlements are not "lost" when parental leave is taken; paid leave accrued at the beginning of parental leave must be carried forward to the date on which the employee returns to work.⁵

With these decisions, the French Supreme Court has relied on the provisions of European law, which is more protective of the employees' interests and excludes the rules laid down in the French Labor Code.

This new case law has immediately been applied by the lower courts: in two decisions dated 27 September 2023⁶ and 12 October 2023⁷, the Paris Court of Appeal followed the position of the French Supreme Court.

The Paris Court of Appeal based its decisions on European regulation and recalled that European law made "no distinction between employees who were absent on sick leave during the reference period and those who have actually worked" in support of its decision that:

• An employee who was on sick leave that was not due to an occupational disease was entitled to accrue paid leave for the period of sickness absence. The Paris Court of Appeal ordered the employer to pay a paid leave "pay-in-lieu" compensation covering a period of more than three years, amounting to '6,000;⁸ and
• An employee who took several periods of sick leave during...