Workers in France can now earn holiday days during sick leave

Court rules that right is retroactive, leaving employers concerned over a flurry of potential claims

Those on extended sick leave will benefit from the change
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France’s highest judicial court has ruled that workers on sick leave can still continue to earn holiday days (congés payés), to the chagrin of France’s leading employers’ union.

Previously, you would only continue to earn holiday days if the sick leave was directly related to a work accident, but the Cour de Cassation cited a 2003 EU directive – never implemented in France despite union attempts – as the basis for their ruling.

However, France’s employers’ union Medef said the ruling was “an enormous cause for concern,” particularly as it allows for backdated claims from those no longer working in the same company they received the sick leave from.

The Confédération des petites et moyennes entreprises (confederation of small and medium businesses) started a petition against the ruling – which they called “complete nonsense” – which has already received over 20,000 signatures.

France’s Labour Code has not yet been changed due to the decision, but lawmakers are looking into rewriting the relevant sections. Individuals can use the Court’s ruling as a legal basis for claims, however, if this right is not adhered to by companies.

Unions win case

The issue of holiday days gained during sick leave has long been an issue, with French unions pointing to the EU directive multiple times.

The decision by the Cour de Cassation relates to a joint-action by the CGT, Solidaires, and Force Ouvrière unions near Versailles earlier this year.

Alongside ruling that the EU directive would apply in France, the three unions will receive financial compensation.

Two and a half days of holiday per month of sick leave

The ruling means that for one month of sick leave, two days and a half of holiday leave can still be earned, regardless of the circumstances for the sick leave.

This is the same amount as someone working receives.

In addition, these days can be taken before returning to work, allowing people to extend their absence by using holiday leave at the end of their time off sick they had earned whilst not working.

‘Retroactivity’ worries employers

One particular issue for the employers’ unions is that the ruling seems to allow for backdated claims, even for those no longer employed at the company they worked for when sick.

Although they of course cannot earn sick leave from their old company, it could translate into paid compensation.

Employer’s unions are therefore stressing a cut-off point of 15 months before the ruling for such claims to be made.

This will need to wait, however, until the Labour Code is updated to reflect the court’s ruling, with no further information on such a change being announced yet.

France’s Constitutional Council will rule on a similar case next month, which will provide the government with additional legal basis to rewrite the relevant sections of the code.

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