Olivier Dussopt, the former Minister of Labor, remembers very well when he first heard about the thorny issue of paid leave acquired during sick leave. It was not September 13, 2023, when the Court of Cassation delivered a resounding judgment on the question, but a few weeks earlier, in August. “The Versailles Administrative Court of Appeal then ruled in favor of employees in a dispute of the same nature,” recalls the former tenant of rue de Grenelle.
According to the Labor Code, an employee of a company arrested due to a non-occupational illness does not acquire paid leave during his absence. A provision which goes against the European Working Time Directive of 2003 and the European Charter of Fundamental Rights of 2009, which France has never fully respected.
Last September, the highest French court thus kicked the anthill by recognizing that the Labor Code was contrary to European legislation on this point, even opening the way to retroactivity. Panic among business leaders. The government is aware of the urgency of acting to modify the law while trying to limit the damage. We still had to wait for the response from the Constitutional Council on February 8 to a priority question of constitutionality (QPC) on the subject filed by a private sector employee. The Wise Men finally considered that articles L3141-3 and L3141-5 of the Labor Code, relating to the rules for acquiring paid leave during sick leave, were not unconstitutional. “This recent positioning changes absolutely nothing. They are passing the buck back to the legislator, telling them that we must now act,” judges a close expert on the matter.
A bill not that advanced?
The teams of the new Minister of Labor, Catherine Vautrin, now have the upper hand. “I had hoped that the examination of the bill would be included on the agenda of the Assembly a little later so that the decision of the Constitutional Council could possibly be integrated in order to facilitate transposition,” Olivier explains today Dussopt. But what about the progress of the project? On Matignon’s side, we promise that the conclusions of the institution chaired by Laurent Fabius “were expected” and “do not call into question the intention of transposition which will be examined in the spring, in a timetable that the minister will soon specify to the partners social”.
However, the government’s intentions in this matter are unclear. “The general management of labor has been working on the subject quite seriously in recent months, but in my opinion, they have not yet clearly defined their position,” believes the former member of a ministerial cabinet. “It would not surprise me if they were surprised by the decision of the Constitutional Council. On the side of the executive, there was a conviction that it would invalidate the two articles concerned. It is in this spirit that this reform project had been prepared”, assures Bruno Serizay, partner at the Capstan firm and specialist in social law. This is ultimately good news, as the government will have the opportunity to ensure that the new law is the least penalizing for businesses.
Employer organizations waiting
Several major points remain to be decided. Starting with retroactivity. Could it run until 2009, almost 15 years? The Constitutional Council was careful not to give any clues to the government. “This issue causes great stress among our members,” says Marc Sanchez, general secretary of the Union of Independents and Very Small Businesses. Furthermore, according to European legislation, an employee on sick leave can acquire up to four weeks of paid leave. Employer organizations are currently campaigning with the ministry for this limit to be applied to non-occupational illnesses, with France granting a maximum of five weeks for an occupational illness or work accident. “On the content, the government is suggesting that it would go for a minimum transposition, to resolve situations for the future,” specifies Maud Renaud, head of the CFDT confederal legal service. At the Confederation of Small and Medium Enterprises, we are demanding financial compensation from the State. “We would not see why the bosses would bear the cost of this decision alone. I remind you that we are talking here about “non-work” which generates paid leave,” points out its president, François Asselin.
In the meantime, the National Association of HR Directors has taken the lead to avoid disasters. “Since the decision of the Court of Cassation, there is an unknown which obliges us to tell our members: provision for current leave so as not to find yourself with an additional financial burden,” indicates its vice-president Benoît Serre. Medef, for example, estimated the annual cost for companies of such a turnaround at between 2.5 billion and 3 billion euros. “To make his evaluations, he used a completely rational method by asking his different federations to report the data while taking into account different situations, in particular collective agreements. This seems credible to me,” judges Bruno Serizay.
Olivier Dussopt, for his part, estimated the bill at 1.8 billion euros, specifying nevertheless “that this is a very fluctuating matter”. For the moment, the tidal wave in the courts of appeal and in the industrial tribunals has not taken place. “The CGT had called on a certain number of its members to launch major operations in companies. This does not work. It is normal that this worries, however, at this stage, I have not seen an explosion of litigation”, assures the leader of an employers’ organization. The legislator will in any case have to react so that everyone can see things more clearly.
.