Understanding the Impact of Absences on Paid Leave: Assimilated Periods and Health Conditions

Because all work deserves rest, paid leave is one of the fundamental pillars of labor law.

Thus, any employee, whether full-time or part-time, acquires in rest days the equivalent of 2.5 working days of actual work per month, or 30 working days or 5 weeks of leave for a full year. But what happens in the event of absence?

Periods assimilated or not

It’sArticle L3141-5 of the Labor Code which determines which absences are considered as actual work (and, therefore, taken into account for the acquisition of paid leave).

Thus, it goes without saying that the periods corresponding to the use of these famous rest days are obviously included, as are rest periods compensating for overtime or even RTT days (reduction in working time).

Likewise, paternity leave, maternity leave, adoption leave but also for family events, such as marriage, civil partnership, birth or death, and other training leave are also included in the equation.

Conversely, a layoff, a strike and full-time parental leave or parental presence are not considered as periods of actual work and therefore do not contribute to the acquisition of paid leave.

The state of health at stake

However, the situation becomes more complicated for the employee’s state of health.

Indeed, the Labor Code only takes into consideration leave for occupational illness and work accident, provided that the absence does not last more than one uninterrupted year.

As soon as you take time off for a non-professional illness or due to an accident occurring outside your position, this absence is not considered as actual work and may have a negative impact on the calculation of your leave. paid if it continues.

Although you do not have to have a full year of work to claim all of your days of rest, you must in fact accumulate 48 weeks of actual work (including equivalent absences) to benefit from the 30 working days of leave. provided for by law.

Reversal of jurisprudence

But according to the Court of Cassation, this legislation is contrary to article 7 of European Directive 2003/88 according to which: “Member States shall take the necessary measures to ensure that every worker benefits from paid annual leave of at least four weeks”.

The judges therefore took matters into their own hands through three case law judgments rendered on September 13, 2023.

Thus, the Court considers that work stoppages due to illness or non-occupational accident must be assimilated to periods of actual work and give entitlement to the acquisition of paid leave.

As for sick leave and professional accidents, they must be taken into account regardless of their duration, instead of the one-year limit imposed.

Finally, national law provides that if an employee has not been able to benefit from their paid leave, they have 3 years to claim them from the end of the year during which they acquired them.

Here again, the Court of Cassation brushes aside the provision and considers that the limitation period only begins if the employer has actually allowed its employee to exercise this right.

What consequences?

Please note: the Court of Cassation does not have the power to directly modify the legislation!

On the other hand, through these judgments, it clearly indicates the new procedure to follow to the industrial tribunals, responsible for all disputes under the Labor Code, and gives employees new means of defending their rights.

It is also a call to the State to change the law.

Until then, employers can therefore choose to comply with these decisions in order to regularize possible similar situations internally or to ignore them and wait for the outcome of possible litigation.