The figure may be surprising: nearly a quarter of labor tribunal disputes regarding sick leave revolve around the calculation of overtime hours. Behind this statistic are very concrete, sometimes tense situations where the payslip becomes the stage for a silent tug-of-war between employee and employer.
Overtime and Sick Leave: What the Law Says Today
The Labor Code leaves no room for interpretation: only hours actually worked are recognized as effective working time. Therefore, when an employee is absent due to a sick leave, no overtime hours are to be counted during this period. This rule applies straightforwardly: the calculation of overtime is done week by week, based on the 35 hours stipulated by law.
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In other words, if an employee is absent due to illness, the hours not worked are not taken into account for crossing the threshold of overtime, even if the usual pace would have allowed exceeding this limit. Labor law remains firm on this point: absence due to illness does not entitle one to increased hours, as it does not correspond to actual presence in the company.
That said, some agreements or collective conventions may provide for more favorable measures. For example, it sometimes happens that a convention stipulates that all or part of the absence due to illness is treated as effective working time, which can then modify the weekly calculation of overtime. However, in the absence of such a text, the general rule applies, and the payroll manager follows the doctrine to the letter.
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The counting of hours, week by week, remains the core of the system. The period of absence due to illness does not count in the calculation of the 35-hour threshold, except for exceptions provided by collective agreement. For payroll professionals, this distinction is not an administrative detail: it directly affects the amount of payslips, entitlement to increases, and can be a source of tension or even disputes.
To explore the issue of overtime during sick leave in detail, the Astuces Business website dedicates a comprehensive article to the topic. The debate is not just legal: it has concrete repercussions on professional life and the trust relationship between employer and employee.
What Impacts on the Calculation of Benefits and Maternity Leave?
Since the adoption of the law of April 22, 2024, France has evolved the rules of the game. Periods of sick leave are now treated as effective working time for calculating paid leave rights. This change marks the end of a long period of legal uncertainty and brings French legislation closer to European requirements. From now on, whether a sick leave has a professional origin or not, it no longer blocks the accumulation of paid leave.
On the side of daily allowances, the calculation is based on the gross salary received during the months preceding the leave. The overtime hours actually worked during this period are included in the calculation base. However, the system does not take into account hypothetical increased hours during the absence, even if the employee regularly performed them before. In the private sector, Social Security applies a three-day waiting period, compared to just one in the public sector. During this time, no allowance is paid, unless a collective agreement provides otherwise.
The logic is the same for maternity leave: the leave is considered as assimilated time for acquiring paid leave. Payroll managers must therefore adapt their practices and accurately distinguish between hours actually worked and assimilated periods.
For clarity, here are the main consequences to remember:
- Paid leave continues to accumulate during sick leave.
- Daily allowances are based on previous salaries, including the overtime actually worked.
- The waiting period remains set at three days in the private sector, one day in the public sector.
Recent Decisions: How Are Employees’ Rights Evolving in Light of New Jurisprudence?
The Court of Cassation has recently set a decisive milestone: the deferral of paid leave due to sick leave is now based on solid jurisprudence, in line with the directive 2003/88/EC of the European Union. The ruling of September 10, 2025, confirms this advancement. If an employee cannot take their leave due to illness, they retain the benefit, provided they clearly inform their employer. This new alignment between French legislation and European law establishes the priority given to the right to effective rest.
But the debate does not stop at the deferral of leave. The rules for calculating overtime during an absence are now receiving particular attention. Sick leave days are not considered as effective working time for triggering overtime, unless a collective agreement states otherwise. The Court of Cassation emphasizes: only hours actually worked count towards reaching the weekly threshold. This reminder protects the fragile balance between employees’ rights and employers’ obligations.
On the tax side, the exemption ceiling for overtime remains set at 5,000 euros per year, with an exception of 7,500 euros during a state of health emergency. For payroll managers, the stakes are even higher as they must closely follow these legal and jurisprudential developments. Between clarification on the deferral of leave and securing the treatment of increased hours, vigilance is essential for all actors in labor law.
The rules are changing, payslips are adjusting, but one certainty remains: every hour counts, and the slightest error can become the starting point for a new dispute. The story continues to unfold, between texts, jurisprudence, and the realities on the ground.