§3 Sick leave

In contrast to the right to maternity leave and parental leave, the right to sick leave and the conditions for exercise of that right are not governed by EU law. Nonetheless the Court establishes limits to national law, where paid annual leave and sick leave overlap. This builds on the different purposes of the two. The purpose of the right to paid annual leave is to enable the worker to rest and to enjoy a period of relaxation and leisure. The purpose of the right to sick leave is to enable the worker to recover from an illness that has caused him or her to be unfit for work (329). Entitlement in case of sick leave As stated above, workers on sick leave remain entitled to accrue paid annual leave, since it is not a condition of paid annual leave that the worker must have worked during the reference period (330). Exercise of the right in the event of sick leave The Court has clearly held that it is open to the Member State to authorise or prohibit the taking of annual leave during a period of sick leave (331). Nonetheless, if the worker does not wish to take annual leave during that period, annual leave must be granted for a different period (332). This means, in particular, that a worker who is on sick leave during a period of planned annual leave has the right to take that annual leave at a different time, at his or her request (333), whether sick leave begins before or during the planned paid annual leave (334). While the employer’s interests can be taken into account when scheduling the worker’s leave, the entitlement to annual leave at a later date cannot be called into question (335). So the employer must grant the worker a different period of annual leave compatible with those interests, without excluding in advance a period outside the reference period for the annual leave in question (336). Carry-over in case of sick leave Where the worker has been sick during part or all of the leave year, he or she may not have been able to take paid annual leave, although still entitled. As stated above, while the Court has held that ‘the positive effect of paid annual leave for the safety and health of the worker is deployed fully if it is taken in the year prescribed for that purpose, namely the current year’, it has nevertheless taken the view that ‘that period did not lose his interest in this respect if it is taken during a later period’ (337). Therefore, where a worker who has been on sick leave for all or part of the leave year has not had the opportunity to take the paid annual leave, the Court has held that the right to paid annual leave cannot lapse at the end of the reference period (338) but that the worker should be allowed to carry it over, by scheduling it if necessary outside the reference period for annual leave (339). Member States may limit the period in which paid annual leave can be carried over (340). The Court has acknowledged that the right to the accumulation of entitlements to paid annual leave acquired during incapacity for work is not unlimited (341). However, the Court has also held that ‘any carry-over period must be substantially longer than the reference period in respect of which it is granted’ (342). It has therefore held that a carry-over period of 9 months, i.e. shorter than the reference period to which it relates, did not ensure the positive effect of paid annual leave as a rest period and therefore could not be used to determine the expiry of the entitlement to paid annual leave (343). By contrast, it accepted a carry-over period of 15 months (344). Finally, the Court has clarified that when Member States decide to grant paid annual leave in addition to the four weeks provided for by the Directive, they are not obliged to provide for a carry-over of any such additional leave, since that additional leave (beyond four weeks) is not covered by the Directive (345). Allowance in lieu in the event of sick leave until the employment relationship ends In the case of a worker being on sick leave for all or part of the leave year and/or of a carry-over period until employment ends, the Court has held that it is incompatible with Article 7(2) to preclude the payment of allowance in lieu of paid annual leave not taken (346).

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07