As a reminder, following the decisions made on the 13th September 2023, an ill employee accrues the same number of days of paid leave as an employee who is working the entirety of the accrual period.
In order to limit the effects of these decisions, the government submitted a draft bill to the State Counsel for its opinion. This opinion, issued on the 11th March 2024, reveals the envisaged measures.
This flash aims to inform you about potential developments which may occur in coming weeks.
What you should know about the proposed legislation:
1- Differences in the accrual of the number of days of leave according to the nature of the work stoppage:
- Employee on ordinary sick leave: 24 working days of paid leave per year, this being 2 days accrued per month.
- Employee on sick leave due to an accident at work/occupational illness: 30 working days of paid leave per year, this being 2.5 days accrued per month.
2 – Implementation of the accrual rule as from the 1st December 2009:
Consequences: The employees present in the company who were ill since this date have the right to claim the non-accrued leave.
State Counsel’s recommendation: Limit this right to claim to 24 working days (this recommendation will likely be followed by the government).
3 – Carry-over period limited to 15 months with 2 assumptions:
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Employee who has accumulated leave before their sick leave and who cannot take them due to their sick leave:
They have the right to take the, upon their return during a period of 15 months, from the time the employer informs them of their rights. This information must cover the number of days of leave and the period.
Attention: If the employer does not inform the employee of their rights, the 15-month period does not start.
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Employee on sick leave over multiple paid leave accrual periods:
In the event that the employee is absent at the end of the paid leave accrual period, any paid leave accrued during their absence must be taken within 15 months of the end of the leave accrual period. Therefore, if the employee does not return within 15 months of the leave accrual period, any leave accrued during their absence will be lost.
Attention: If the employee returns within the 15 months after the leave accrual period ends, the employer must inform them of the number of days of paid leave they have accrued and of the remaining period in which they can take their paid leave accrued during their absence before they are lost. If no information is provided, the remainder of the 15-month period ceases to run.
Example: An employee with 30 days of accrued paid leave is on ordinary sick leave from the 1st June 2022. He returns on the 31st May 2024:
- Upon his return on the 31st May 2024, he will have 15 months to take his 30 days of paid leave which were accrued before his sick leave, provided that his employer informs him that he has 15 months to take the 30 days of paid leave.
- For the paid leave accrued during the period of the 1st June 2022 to the 31st May 2023 (accrual period): The employee has until the 1st September 2024 to take their 24 days of accrued paid leave, provided that upon his return on the 31st May 2024, the employer informs him that he has 3 months left to take the paid leave accrued for the year 2022-2023. In this situation, the 15-month period started on the 1st June 2023, this being the end of the accrual period.
If the employee does not take his 24 days before the 1st September 2024, the remaining leave for 2022-2023 will be lost. - For the paid leave accrued during the period of the 1st June 2023 to the 31st May 2024: The employee has returned before the end of the accrual period, therefore he benefits from the statutory scheme and has 12 months to take his 24 days of paid leave that he accrued during his absence.
4 – Implementation of a period during which the employee can claim paid leave:
- For employees still working for the company: they have 2 years following the date in which the law was put into effect to request paid leave, even if the employer has not informed the employee of their paid leave entitlement and the possibility of deferring it.
- For employees who have left the company: they have 3 years from the date of their departure to bring an appeal before the industrial tribunal to claim back paid holiday.
WARNING: The analysis made by the PÔLE SOCIAL COGEP & COGEP AVOCATS should be taken with caution, as it is only a draft law pending final approval. In principle, this bill should be passed in April, so it may still be amended.
Your regular contacts in the COGEP group remain at your disposal to help with the practical management of these important changes in national law.
