Can an employee acquire paid leave during sick leave?

Provisions of the Labor Code

Until now, it has not been possible to acquire days of paid leave during a work stoppage of non-professional origin.

The Labor Code states that only periods of suspension accident at work of the contract of employment because of actual work. These periods are taken into account in the calculation of paid leave.

This provision therefore did not apply to the employee in ordinary sick leave.

Provisions of the European Court of Justice and the Court of Cassation

However, the Court of Justice of the European Union (CJEU) accepts that an employee may acquire paid leave during his illness of non-occupational origin.

This position was confirmed by the French Court of Cassation on September 13, 2023.

The Court of Cassation now considers that sickness judgments constitute periods of actual work determining the duration of leave (in the same way as maternity leave or paid leave, for example).

Accident at work Thus, the employee who is off work due to an occupational illness or or ordinary disease is entitled to take paid leave.

In addition, the Court of Cassation also complies with the directives of the European Court and states:

• the employee shall continue to be granted leave for the entire duration of his or her absence even if the absence is not related to an accident at work or an occupational disease. The calculation of leave with pay entitlements will therefore no longer be limited to the first year of the work stoppage
• the limitation period for leave with pay shall not commence until the employer has taken all the measures necessary to enable the employee to exercise his right to leave with pay