Paid Leave and Illness: The Employee Cannot Lose Their Rights Even After a Long-Term Sick Leave

Imagine: you are an officer at the Caisse primaire d'assurance maladie in Pontarlier. You fall ill for six months, your employer continues to pay your salary in accordance with the collective agreement. When you return, you ask to take your annual leave, but you are told that your days of absence have reduced your entitlements. Unfair, isn't it?

This question was decided by the Court of Cassation on 3 November 2005 in a ruling that remains authoritative. The judges said: when salary is maintained during illness, the absence is treated as actual working time. Consequently, it cannot reduce the number of paid leave days acquired. A decision with concrete consequences for thousands of employees, from social security staff in Pontarlier to executives in Montbéliard.

So, who is affected? How can this right be asserted? And above all, what should you do if your employer refuses to allow you to take this leave? This article explains everything, step by step.

The facts: a story that happens every day

Mr X, an employee of the Caisse nationale de sécurité sociale, was on sick leave for several months. Throughout this period, his employer maintained his salary in accordance with Article 38(d), paragraph 4, of the National Collective Agreement for Employees and Executives of the Social Security of 8 February 1957, as well as the internal regulations of the organisation.

Upon his return, Mr X asked to take his annual leave. The employer refused, considering that the absence due to illness, even with salary maintenance, constituted a non-working period which reduced his leave entitlements accordingly. Mr X then brought the matter before the industrial tribunal to obtain a compensatory allowance in lieu of paid leave (a sum paid in place of days not taken).

The industrial tribunal ruled in his favour, but the Besançon Court of Appeal reversed this decision, holding that the internal regulations of the organisation excluded employees whose remuneration had been maintained during illness. Mr X then appealed to the Court of Cassation. The Court of Cassation quashed the appeal judgment and remitted the case to another court of appeal, confirming that absence with salary maintenance could not reduce annual leave.

The reasoning of the court — analysed

The Court of Cassation relied on Article 38(d), paragraph 4, of the collective agreement. This provision states that days of absence due to illness attested by a medical certificate or long-term illness are, when they involve salary maintenance, treated as working time. In labour law, actual working time is the period during which the employee is at the employer's disposal and complies with their instructions. Paid leave is calculated on the basis of actual working time. If an absence is legally treated as work, it must therefore be counted for the acquisition of leave.

The difficulty arose from paragraph XIV of the internal regulations annexed to the agreement, which specified that the situation of an employee whose remuneration has been maintained during illness is not covered by this provision. The Besançon Court of Appeal interpreted this clause as a total exclusion of leave entitlements for employees on sick leave with salary maintenance. However, the Court of Cassation considered that these regulations could not contradict the collective agreement itself, which clearly treated such absences as actual work. In other words, internal regulations cannot reduce rights already granted by the collective agreement.

In doing so, the Court of Cassation reaffirmed a fundamental principle: a collective agreement is a contract binding on the parties. Internal regulations, even if annexed, cannot derogate from it in a manner less favourable to the employee.

What this means for you — concretely

For a social security employee in Montbéliard, this decision means that if you are on sick leave with salary maintenance for 3 months, you continue to acquire 2.5 working days of leave per month (i.e., 7.5 days for those 3 months). Upon your return, you must be able to take them. If your employer refuses, you can claim a compensatory allowance (approximately 1/10th of the gross salary received during the acquisition period).

For an employer, this decision requires that these absences be counted as actual working time in the calculation of leave entitlements. A calculation error can lead to a back payment of salary over several years, with interest. Take a concrete example: an employee in Pontarlier earning €2,500 gross per month, absent for 6 months with salary maintenance, acquires 15 additional days of leave (6 months × 2.5 days). If they cannot take them, the compensatory allowance will be (2,500 × 6) / 10 = €1,500, i.e., €100 per day of leave not taken.

If you are in this situation, you must check your collective agreement and your employment contract. If your employer maintained your salary during the illness, you are entitled to your leave. Send them a registered letter with acknowledgement of receipt to request the taking of these days, or, in case of refusal, take the matter to the industrial tribunal within 3 years of the end of your sick leave.

Four tips to avoid this type of dispute

• Keep your medical certificates and payslips during the illness: They prove that your salary was maintained. Without these documents, it will be difficult to demonstrate that the absence was compensated.
• Check your collective agreement: Not all agreements provide for salary maintenance. If yours does, note the specific article and the associated internal regulations. If in doubt, ask your employer or a union.
• Request your leave in writing as soon as you return: Send an email or a registered letter to keep a record. If the employer refuses, you will have proof for any potential legal action.
• Do not let too much time pass: The limitation period (time limit to take legal action) is 3 years from the end of your sick leave for claims regarding paid leave. After this period, you lose your rights.

Further reading: related case law and developments

This 2005 decision is part of a protective line of case law regarding the right to paid leave for sick employees. Already in 2004, the Court of Cassation had ruled (Cass. soc., 24 March 2004, No. 02-42.142) that periods of suspension of the employment contract due to work accidents or occupational diseases are treated as actual working time for the acquisition of leave, even without salary maintenance. The particularity of the 2005 ruling is that it concerns ordinary illness, but only when salary is maintained.

Since then, the Court of Cassation has further strengthened this protection. For example, in a ruling of 13 June 2018 (No. 16-28.102), it held that sick employees are entitled to paid leave even if their absence is not treated as actual working time by the collective agreement, as long as European law (Article 31 of the Charter of Fundamental Rights) requires that leave not be reduced due to illness. However, under current French law, it is the maintenance of salary that triggers the assimilation. The trend is therefore towards harmonisation with European law, which could in the future extend this right to all sick employees, regardless of salary maintenance.

Key points to remember

FAQ:

1. Does my employer have the right to reduce my leave if I am ill with salary maintenance? No, according to this Court of Cassation ruling. The absence is treated as actual working time.
2. What should I do if my employer refuses to allow me to take this leave? Send a registered letter requesting the taking of the leave. If refused, take the matter to the industrial tribunal within 3 years.
3. Does this decision apply to all employees? It directly concerns social security employees, but the principle (assimilation of absences with salary maintenance) can be invoked for any collective agreement providing for salary maintenance.
4. Can I claim a compensatory allowance if I was unable to take my leave? Yes, the allowance is equal to 1/10th of the salary received during the acquisition period for the leave not taken.
5. Is there a time limit to act? Yes, you have 3 years from the end of your sick leave to claim your leave or an allowance.

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