An employee who falls ill during his vacation has “the right to have one’s paid leave postponed” : to align French law with European rules, the Court of Cassation enacted this principle on Wednesday, two years after having already imposed the acquisition of leave during sick leave.
In European law, "The purpose of paid leave is to allow employees not only to rest, but also to enjoy a period of relaxation and leisure.", recalls the highest French court.
The purpose of sick leave is different: it must “allow employees to recover from a health problem”, she continues in her press release, explaining that "these two rights therefore do not have the same purpose."
In the French case law currently in force, and therefore now called upon to be reformed, "It's the primary cause of the leave that counts: if I'm on sick leave when paid leave arrives, I retain my rights to paid leave since I was already on sick leave.", explains Arnaud Teissier, partner at Capstan Avocats, for AFP. “On the other hand, if I am already on leave when my sick leave occurs, I cannot claim credit for my paid leave.”, he adds.
“Very concrete gain”
"From now on, if you fall ill during your vacation, your days no longer disappear. (…) It is both a symbolic victory and a very concrete gain for millions of employees.", notes on his site Eric Rocheblave, a lawyer specializing in labor law, who believes that the "right to rest, cornerstone of labor law, consolidated". He points out, however, that this "imposes a new deal" to employers, who will have to “adjust schedule management”.
In September 2023, already by virtue of a European directive, the Court of Cassation had revised French labor law by allowing employees on sick leave to acquire paid leave, even if “this absence is not linked to an accident at work or an occupational illness”.
French law had thus been amended, with parliament adopting a measure in April 2024 allowing employees on non-occupational sick leave to acquire paid leave, but only within the limit of four weeks per year guaranteed by European law, and not five weeks per year as in French law, which the unions had criticized. The French system will find itself "a little destabilized by these decisions of September 2023 and today of September 2025", according to Arnaud Teissier.
“Very negative signal”
The lawyer believes that "this will send sick leave that should not have been taken to the Social Security system": "this is not necessarily a good signal that is being given" at a time when "we are hunting down sick leave, especially those that are perhaps a little abusive," he says. In another ruling published Wednesday, the Court of Cassation ruled, following an appeal by three employees, that an employee on an hourly basis is entitled to overtime pay, including "during the week in which he took a day of paid leave and therefore did not actually work 35 hours."
Thus, an employee on leave on Mondays and Tuesdays who has worked eight hours a day for the remaining three days of the week will now receive three hours of paid overtime, compared to none previously. For the Medef, these two new decisions "send a very negative signal at a time when our country, faced with competition from an open world, needs to work more"The main employers' organization "calls on the future government to seize all the possibilities available to it to defend the value of work".
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