The right to paid leave for sick employees angers SMEs and delights unions

“For seventeen months I suffered a series of sick leaves from a waiter whose absence forced me to refuse customers and caused a significant loss of turnover. In this new legal context, I would be obliged to pay him at least 3,500 euros for his paid leave, even though he has not worked for me for a year and a half. exclaims a Savoyard restaurateur.

The latter therefore hastened to sign the petition launched by the Confederation of Small and Medium Enterprises (CPME), which claims to have collected in a few days 15,000 signatures from bosses, against several judgments rendered by the Court of Cation on the 13th. september. The reason ? These judgments affirm that from now on an employee arrested for illness, even non-professional illness, continues to acquire rights to paid leave (generally at the rate of 2.5 days per month).

This reversal of jurisprudence results from another 2009 ruling from the Court of Justice of the European Union (CJEU), which ensures the application of Community law. Based on a 2003 Brussels directive on working time and the Charter of Fundamental Rights of the European Union, the CJEU stipulated that the right to annual leave established by this directive could not be subordinated to the obligation to have actually worked during the period concerned.

Inconsistency of the situation

Consequently, workers on sick leave were entitled to paid leave, regardless of the duration and cause of their absence. In doing so, the highest European judicial body came up against national legislation, which specifies that only an employee arrested for a work accident or occupational illness continues to acquire paid leave, and this within the limit of one year.

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France should, in fact, have overcome this contradiction by transposing this provision, which is binding on all member states, into the labor code. But it neglected to do so, resulting in convictions following complaints from aggrieved employees. For its part, after pointing out the inconsistency of the situation, the Court of Cation ended up complying with European case law on September 13.

“This will cost employers of all sizes some 2.5 billion euros per year and more than 7 billion over three years, knowing that employees could undoubtedly benefit from retroactivity. Even though sick leave is less frequent in SMEs and VSEs, the latter will have difficulty withstanding such a shock. alerts Jean-Eudes du Mesnil du Buisson, secretary general of the CPME.

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