Paid leave put to the test of the exit from the state of health emergency – economy

Ordinance No. 2020-323 of March 25, 2020, laying down emergency measures in terms of paid leave, working hours and days of rest, had enabled employers, in order to cope with the economic, financial and social consequences the spread of Covid 19, to derogate from the provisions of the Labor Code and the contractual stipulations applicable in the company, establishment or branch, by authorizing the employer, within the limit of 6 days of leave, and subject to to respect a period of notice which could not be reduced to less than one clear day, to impose the taking of 6 days of paid leave acquired by an employee, including before the opening of the period during which they normally have vocation to be taken, or to unilaterally modify the dates for taking paid leave.

This exemption was nevertheless subject to the signing of a company agreement or, failing that, a branch agreement.

This company or branch agreement could also authorize the employer to split the leave, without being required to obtain the employee’s agreement, and to set the dates of the leave without being required to grant simultaneous leave to spouses or partners bound by a Civil Solidarity Pact working in his company.

The imposed or modified leave period extended from March 26, 2020 to December 31, 2020.

Due to the still active circulation of the Covid 19 epidemic and the appearance of new variants of the virus, Law No. 2021-160 of February 15, 2021, extended the state of health emergency until June 1, 2021.

The Government has therefore envisaged to extend until 31 October 2021 the period of application of certain necessary accompanying measures to the management of the health crisis.

Thus, on April 12, 2021, the Council of State received a bill relating to the management of the health crisis, which was amended by two corrective referrals on April 14 and 17, 2021.

This bill provided, after the end of the state of health emergency set on June 1, 2021, to organize by temporary provisions applicable until October 31, 2021, the exit from the state of health emergency, including , in its article 6, the possibility for the employer to impose the taking of 8 days of paid leave or to modify the dates of these holidays.

In its opinion of April 21, 2021, the Council of State considers that the damage likely to be brought to legally acquired situations or to the effects that can legitimately be expected from such situations, by the measure, the scope of which is limited and of which the implementation is subject to a prior collective agreement, can be regarded as justified by a reason of sufficient general interest. It does not ignore any other constitutional or conventional requirement.

The bill was registered in the National Assembly on April 28, 2021.

It has just been adopted on May 11, 2021 and the period during which provisional measures can be taken has been shortened to September 30 instead of October 31, 2021, the date initially set in the bill.

Apart from increasing the number of days of paid leave from 6 to 8, the dates of which can be imposed by the employer and extending the period during which the employer can use this right, the conditions set by the ordinance of March 25, 2020 are not modified.

Thus the employer can only impose or modify the dates of paid vacation of an employee if a company agreement, or, failing this, a branch agreement has been signed.

Many fixed-term company agreements have been signed since the promulgation of the ordinance of March 25, 2020, thereby derogating from the rules on paid leave.

It should be remembered that company agreements which, to be valid, must be in the majority, may derogate from the contractual stipulations existing within the company for the duration of the agreement or within the limit of the period granted by the legislator, in this case on September 30, 2021.

Social partners who have signed agreements on this subject under the aegis of the ordinance of 25 March 2020 will be able to revise their initial agreement to benefit from the new measures.

He It should be noted that this is not a question of granting a new right to companies, but to extend the derogatory regime and increase from 6 to 8 working days of paid vacation the number of days that the employer can impose.

This measure has the advantage for the employer of requiring the taking of 8 working days of paid leave, on the dates it wishes, or even of splitting these 8 days, to spread out the taking of paid leave of its employees, in order to to adapt to the necessarily random resumption of its activity, and this within a short time, since the notice period can be 1 clear day.

The other advantage is to be able to split the 8 days of paid leave, without having to give additional leave for splitting.

This derogatory right is nevertheless restricted since it is limited to 8 working days.

This flexibility granted to companies to help them cope with the economic, financial and social consequences of the health crisis, has the advantage for employees who are in partial activity to receive, during their paid leave, no longer a partial activity allowance. but a paid vacation allowance equal to their salary, since during their vacation they are no longer in partial activity.

This system combines flexibility for the company and guaranteed income for employees, within a limit which proportionately preserves the interests of both parties.

The ordinance of March 25, 2020 also provided in its articles 2 and 3 that the employer could impose on employees until December 31, 2020 the taking, on dates determined by him:

conventional rest days

days of rest provided for by a fixed-price agreement

The employer could also unilaterally modify the dates for taking these rest periods by respecting a notice period of at least 1 clear day.

The employer could also, under article 4 of the said ordinance, require that the rights allocated to the employee’s time savings account be used by the taking of days of rest, the dates of which he determined while respecting a notice period of at least less 1 clear day.

The total number of days of rest which the employer could require the employee to take or of which he could modify the date in application of articles 2 to 4 could not be greater than 10.

Unlike paid leave, the law adopted on May 11, 2021 does not modify the conditions of application of these articles but extends the period of application of these provisions until September 30, 2021.