The French Constitutional Council rendered a decision on 8 February 2024, regarding the conformity of the provisions of the labour code that deny employees who are on sick leave for minor illness the acquisition of paid leave, while limiting them to one year in the case of work-related accidents and occupational diseases, with the French Constitution.
Although this decision has caused a stir among employment law specialists, it will have no immediate impact on companies. This decision does not put an end to the case law of 13 September 2023, which obliges companies, in application of European provisions, to grant employees who are off work due to non-occupational illness a 5 weeks’ leave.
The reason is simple: the position of the Constitutional Council and that of the Court of Cassation do not concern the same issue. The Constitutional Council verifies the conformity of laws with the Constitution, while the Court of Cassation verifies the conformity of laws with the European Union law.
This means that, in any event, for the time being, companies must continue to grant paid leave for periods of absence due to simple illness and for victims of accidents at work due to occupational illness, without limitation, until the legislator takes up the issue. Failure to do so exposes companies to a high risk of litigation.
Questioned on the subject, the French Minister for Employment, Catherine VAUTRIN, stated that the decision of 8 February 2024 would be an “important element” in a modification of the texts that would take place in the “shortest possible time” and which would be as follows:
- Cap at 4 weeks per year, the number of days off that can be accrued during periods of non-occupational illness and at 5 weeks for employees (AT/MP);
- Limitation of the right to carry over accrued paid leave by employees on sick leave to a maximum of 15 months at the end of the reference period (reasonable time limit according to EU case law).
