Employers have a certain number of obligations to respect in terms of paid leave, the principle being that leave must be taken each year.
In order to allow employees to take their vacations, the employer must first set the period of paid vacations and then the dates of vacations.
> Reminder of obligations
With respect to employee representatives
In the absence of a provision in the collective agreement or in a company agreement, if there is a Social and Economic Committee (CSE) in the company (compulsory for 11 or more employees), the employer must first obtain its opinion in order to set the vacation period and the order of departure. Failure to do so may result in a fine.
With respect to employees
The employer must inform the employees of the period chosen for the taking of paid leave at least two months before the start of the leave.
In addition, he must also inform them of the dates of departure for leave at least one month before their actual departure.
It is strictly forbidden to replace the actual taking of paid leave by a paid leave allowance.
> Calendar of the employer’s legal obligations relating to the taking of paid leave by rotation
| Dates | Formalities to complete | Remarks |
|---|---|---|
|
March 1st |
Mandatory communication by the employer to all employees of the dates of the paid leave period, after consultation of the CSE two months beforehand. |
Employee information is most often provided through a memo posted on the company's premises and/or distributed to each employee in the company. |
|
May 1st |
Beginning of the legal period for taking paid vacations. |
Obligation to take a minimum of 12 consecutive working days and a maximum of 24 working days between May 1 and October 31. In the event of specific geographical constraints (e.g., employees from abroad or from the French overseas departments and territories, presence in the home of a child or a disabled adult or an elderly person who is losing his or her independence): possibility of taking 30 consecutive days of leave. |
|
May 31st |
Determination of the number of days of paid leave earned since June 1 of the previous year, for each employee. |
A company or establishment collective agreement, or failing that a branch agreement, may set the starting date of the reference period for the acquisition of leave. |
|
June 1st |
In the absence of a company, establishment or branch agreement, the employer is required to inform employees of the order in which they can take leave after consulting the social and economic committee. |
The order of leave departures is communicated by any means to each employee. |
|
Example: July 31st |
Indication on the pay slip of the July vacation dates and, if applicable, vacation pay. |
The date of issue of the pay slip may be different. In any case, it is the pay slip corresponding to a pay period including the vacation period. |
|
October 31st |
End of the legal period for taking the main leave. Beginning of the period for taking split leave that may entitle the employee to additional days of leave. |
The employee may waive the additional split days due to a collective agreement (his agreement is not required) or at the request of the employer. |
> How do split days work?
Unless otherwise stipulated in the agreement or individually waived, split days are additional days of leave due to the employee in the event that there is a remainder of the main leave on October 31.
It is no longer possible to waive split days in advance.
Indeed, the French Supreme Court has decided that the waiver in advance provided for in a clause of the employment contract is not valid, as well as a general memorandum brought to the employees’ knowledge.
How many days is an employee entitled to?
| Remaining paid leave as of October 31st | Number of split days |
|---|---|
|
≥ 6 working days ("jours ouvrables") |
2 working days |
|
3 to 5 working days |
1 working day |
|
< 3 working days |
No days |
Failure to allocate split days is punishable by a 5th class fine applied as many times as there are employees concerned.
In case of counting in business days (“jours ouvrés”), the right is the same:
| Remaining paid leave as of October 31st | Number of split days |
|---|---|
|
≥ 5 business days |
2 working days |
|
3 to 4 business days |
1 working day |
|
< 3 business days |
No days |
The waiver of split days is always possible under the following conditions:
- Waiver by collective agreement
A company, establishment or, failing that, branch agreement may abolish or reduce the number of split days. The employee’s individual agreement is then not necessary. Case law considers that the employee’s individual agreement is not required if a collective agreement provides that any request for split days of paid leave made by the employee constitutes a waiver of the split days.
- Waiver by individual agreement
In the absence of a collective agreement, employees may individually waive the right to split days. This waiver is not presumed, it must be express and unequivocal.
In the event of a waiver, it is up to the employer to prove it.
The proof is considered admissible when the employee applies for paid leave by means of an individual form mentioning that the splitting of paid leave is equivalent to a waiver. This solution has the merit of being simple to implement in companies by proposing a single model leave request form.
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