“For seventeen months I was repeatedly called out sick by a waiter whose absence forced me to turn away customers, resulting in a significant loss of sales. In this new legal framework, I would be obliged to pay him at least 3,500 euros for his paid vacation, even though he hasn’t worked for me for a year and a half. exclaims a Savoyard restaurateur.

The latter therefore hastened to sign the petition of the Confederation of Small and Medium Enterprises (CPME), which claims to have collected 15,000 signatures from entrepreneurs in a few days against several rulings of the Court of Cassation of the 13th. September. The reason ? These judgments confirm that an employee who is arrested for illness, even non-work-related illness, is from now on still entitled to paid leave (generally at the rate of 2.5 days per month).

This reversal of case law results from another ruling by the Court of Justice of the European Union (ECJ) in 2009, which ensures the application of Community law. Based on a Brussels Working Time Directive from 2003 and the Charter of Fundamental Rights of the European Union, the ECJ found that the right to annual leave enshrined in this directive cannot be subordinated to the obligation to have actually worked during the relevant period.

Inconsistency of the situation

Consequently, employees on sick leave were entitled to paid leave regardless of the duration and reason for their absence. The highest European judicial body came across national legislation that stipulates that only an employee arrested for an accident at work or an occupational disease can continue to receive paid leave, within a period of one year.

Actually, France should have overcome this contradiction by incorporating this regulation, which is binding for all member states, into the labor code. However, this was failed, resulting in convictions based on complaints from aggrieved employees. After pointing out the inconsistency of the situation, the Court of Cassation finally followed European case law on September 13th.

“This will cost employers of all sizes around €2.5 billion a year and more than €7 billion over three years, knowing that employees could undoubtedly benefit from a retroactive effect. Even if sickness absences occur less frequently in SMEs and small and medium-sized companies, the latter will have difficulty withstanding such a shock. alarms Jean-Eudes du Mesnil du Buisson, Secretary General of the CPME.

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