Employees on sick leave can now obtain paid leave. But how can we obtain leave for past arrests as provided for in case law and future law on the subject? Here are our answers to several reader questions.
Question from Sarah, January 29
Can I ask my company to pay me my country leave for the past year, 2023, i.e. 24 days? Knowing that I have been off work for 10 months. How can I do? THANKS.
Question from Fred, January 30
Good evening. I would like to know how the payment of CP works while on sick leave with my former employer having been for more than a year and having been dismissed for incapacity subsequently. I did not have my CP during my illness. Therefore, up to what year can I claim my dice knowing that I was employed from 2010 to 2020?
This is a case law that is causing a lot of noise. In September, the Court of Cassation ruled in a series of judgments that, from now on, under a European directive, employees are entitled to paid leave during their period of absence, even if this absence is not linked to a work accident or occupational disease.
A decision contrary to the French Labor Code which currently limits this leave to cases of occupational illness or work accident. It is a catastrophe since it should cost companies between 2.5 and 3 billion euros per year, calculated the president of Medef Patrick Martin.
The government has decided to contact the Council of State to regulate this new right to national leave. Following his opinion, he has just integrated an amendment during the first reading examination of a bill to bring France into conformity with European law.
Country leave: here are the details of the new rights for employees set by the government
This was adopted on March 19 by the National Assembly and allows, once the law is promulgated and any decrees published, employees in sick leave of non-occupational origin to acquire 24 days of country leave per year, or 2 days of country leave per month. For employees on leave due to occupational illness, it is always five weeks of paid leave.
If you wish to recover paid leave, labor law lawyer Eric Rocheblave, interviewed by MoneyVox, advises to act even before the publication of the new upcoming provisions which will be more restrictive in terms of rights.
Indeed, the upcoming rules for the acquisition and deferral of national leave rights provide for a retroactive application since December 1, 2009 for current employment contracts.
On the other hand, for employment contracts that ended before the law came into force, the retroactivity of the system is limited to three years, i.e. a maximum of 12 weeks of financial compensation for untaken leave. A measure which caused controversy in the Assembly, with environmentalist Sophie Taill-Polian deeming it truly unworthy to steal a few days of leave from people on sick leave.
These new rules are likely to lead to numerous disputes for former employees who are subject to the 3-year limitation period in terms of compensatory compensation for paid leave.
To answer your question Fred, to the extent that you were on sick leave for a year during your employment contract between 2010 and 2020 with a former employer, the future law should not allow you to obtain payment of your CP. And this is due to the rules of common law, which imply the three-year limitation period for actions relating to the payment of wages, indicates the amendment adopted by the Assembly. However, Fred, this point risks being legally contested by people in your situation.
These new rules are likely to lead to numerous disputes for former employees who are subject to the 3-year limitation period in terms of compensatory compensation for paid leave, explains MoneyVox Mohamed Materi, associate lawyer in social law within the Alscio lawyers firm. I expect that some will contest the fact that they do not have the right to recover CP beyond the 3 years preceding the termination of the contract to the extent that the law did not previously provide for the possibility of obtain CP in the event of sick leave. Other employees or former employees could also challenge the fact that the law provides for the acquisition of 2 days of paid leave per month in the event of sick leave compared to 2.5 days in the event of occupational illness but without any real chance of success. with regard to the Council of State and the Constitutional Council which considers this difference in treatment legally justified.
As for you Sarah, you want find out if it is possible to ask your company to pay you paid leave for 2023 while you were on sick leave? The answer is positive Sarah. To do this, simply ask your HR department to credit you for the days of leave to which you are entitled.
In the event of no response or refusal, you can then, according to Maître Rocheblave, send a formal notice to your employer, before contacting the industrial tribunal. If you do this before the promulgation of the new law, this would allow you to recover 2.5 days of CP for each month of sick leave compared to 2 days per month provided for by the future law. Once Sarah’s Law comes into force, you will have two years to take legal action.
In any case, these new provisions risk leading to numerous disputes. And give some employers and their HR departments a cold sweat. The new rules concerning sick leave, which allow you to return until December 2009 to recover paid leave when the employment contract is still in progress, will be a real headache for payroll services, underlines Mohamed Materi. But they will also have to manage the requests of former employees whose contract ended during the last 3 years from the promulgation of the law.
Country leave: these new calculation rules in favor of employees make employers tremble