Employment law
Legal grounds for suspending the employment contract
On Monday, the storekeeper is hospitalised. On Tuesday, an accountant starts maternity leave. On Wednesday, a driver is taken into police custody. Three absences, three different regimes: who pays, how long is the post held, and what happens at the end? Getting it wrong means penalising a protected absence or letting drift a situation that should have been settled.
Our fictional running case: Djoliba Distribution, a food wholesaler in Kayes with 45 employees.
1. What exactly are we talking about?
Suspension of the contract is a temporary halt in its performance: the employee does not work, and the employer is no longer bound to provide work. The contract itself continues to exist. When the suspension ends, the employee returns to their post.
This rule protects employees against losing their job for an absence they did not choose or that the law considers legitimate. The Code lists fourteen cases, and the list begins with "in particular": it is not closed. Labour Code, article L.34
| Ground for suspension | Limit set by the Code |
|---|---|
| Military or civic obligations of the employer leading to closure of the establishment | None |
| Military or civic obligations of the employee | Their statutory duration |
| Non-occupational illness or accident, certified by a doctor | 6 months, extended until the employee is replaced |
| Workplace accident or occupational disease | The whole period of unfitness |
| Police custody or detention | Provided it does not exceed 6 months |
| Technical short-time working | 3 months (6 months in total in a serious health crisis) |
| Strike or lock-out started in compliance with the procedure | None |
| Disciplinary lay-off | 8 days |
| Paid leave and workers' education leave | Their duration |
| Local or national elective office, political office | The length of the mandate or office |
| Maternity leave | 14 weeks (3-week extension possible) |
| Widowhood of a female employee, on written request with death and marriage certificates | 4 months and 10 days |
| Pilgrimage to holy places | No duration set |
| Authorised absence for State cultural and sporting events | None |
The most common mistake
Many materials refer to "eleven cases", limit police custody to "non-work reasons" or apply the widowhood period to pilgrimage. The Code says none of this. Pilgrimage suspends the contract, but the law sets no maximum duration: it is for the internal rules or the parties' agreement to organise it.
Suspension stops the work. It does not stop the contract.
2. Pay during suspension: who pays what?
Suspending the contract does not always mean suspending all income. Depending on the case, the employer, the INPS (National Social Security Institute) or nobody bears the cost.
| Case | What the texts provide |
|---|---|
| Military or civic obligations (employer or employee) | The employer pays remuneration, up to the length of the notice period (article L.36) |
| Non-occupational illness | The employer pays according to a statutory scale (see the example below) |
| Workplace accident, occupational disease | The employer pays the day of the accident; the INPS then pays a daily allowance |
| Maternity leave | The INPS pays a daily allowance equal to the full salary |
| Paid leave | The employer pays the leave allowance |
| Police custody, short-time working, strike, lay-off, office, widowhood, pilgrimage, State events | No pay, unless more favourable provisions apply |
The list of unpaid suspensions is set by the Code. Labour Code, article L.38 For maternity, the daily allowance covers the 14 weeks of leave. Social Security Code, article 28
The scale for non-occupational illness
During the first year of service, the employer pays full salary for a period equal to the notice period. Beyond the first year, one month at half pay is added. Labour Code, article L.37
Example. The Djoliba Distribution storekeeper, paid monthly XOF 200,000, has 3 years' seniority. His statutory notice is one month. He is off sick for 4 months.
First month (notice period): XOF 200,000 at full pay Second month: 200,000 × 50% = XOF 100,000 Third and fourth months: no statutory payment owed by the employer Total owed by the employer: 200,000 + 100,000 = XOF 300,000
The collective agreement may provide longer pay: always check it before closing the calculation.
What you need to do
- Identify the ground for suspension before processing the month's payroll.
- For maternity and workplace accidents, send the certificates to the INPS without delay.
- Compare the statutory scale with the applicable collective agreement.
3. When the suspension ends: decide, don't drift
Several cases are time-bound. When the limit is reached, the protection ends and a decision is needed.
Illness beyond six months
The suspension lasts six months, then continues until the employee is actually replaced. As long as the post is not filled, the contract remains suspended. If the company must replace the employee permanently, termination follows the dismissal rules: written and reasoned notification, notice, and information to the labour inspector.
Workplace accidents and unfitness
The contract is suspended until the injury heals or stabilises. If the employee becomes unfit for their former job, the employer must try to redeploy them to a suitable post. If it has none, dismissal may only take place after the labour inspector's opinion, given within fifteen days (Social Security Code, article 112).
The other limits
- Disciplinary lay-off: 8 days at most. A longer lay-off is irregular.
- Police custody or detention: suspension applies only if it does not exceed 6 months.
- Short-time working: beyond 3 months, any termination is attributable to the employer.
- Illness after maternity leave: the employer may not terminate the contract during the whole suspension (article L.183).
What you need to do
- Record the end date of each time-bound suspension from the start.
- In case of unfitness after a workplace accident, look for redeployment and document it.
- Terminate only in compliance with the dismissal procedure.
4. Leave and seniority: the absences that count
Some suspension periods are treated as work when calculating annual leave: unfitness due to a workplace accident or occupational disease, medically certified illness up to six months, maternity rest and special leave for family events. Labour Code, article L.149
For the seniority bonus, the following in particular are not deducted: illness up to six months, maternity, workplace accidents, paid leave, workers' education leave and training courses (article L.97). Periods of short-time working also count towards seniority-based rights (article L.35).
Example. The Djoliba Distribution accountant returns from 14 weeks of maternity leave. Those weeks count as work: her annual leave entitlement remains two and a half days per month, maternity included.
What you need to do
- Set up the payroll software to distinguish absences treated as work from other absences.
- Never deduct leave days from an employee because of her maternity.
5. Replacing the absent employee
To cover an absence, the company may conclude a replacement fixed-term contract. This contract is not subject to the two-renewal limit, and no precarity payment is due at its end. Labour Code, article L.20
In return, Decree No. 96-178/P-RM of 13 June 1996 (article D.20-1) requires the contract to state the name and qualification of the employee being replaced. For the general rules, see Fixed-term contract (CDD).
The contract that loses its protection
A "replacement" contract that names nobody makes the ground impossible to check. The company then loses the benefits of that ground and risks reclassification as an open-ended contract. Reclassification is when the court turns the fixed-term contract into an open-ended one.
What you need to do
- State in the contract the name and qualification of the employee being replaced.
- Provide that the contract ends when that employee returns, with a minimum duration.
A closer look: suspension and leave of absence
A leave of absence (mise en disponibilité) is not a statutory suspension. It is a break requested by the employee for personal reasons, which the employer is free to grant or refuse. It may last up to 10 years, renewals included. During that period, the employee receives no salary or benefits and accrues no promotion, seniority or pension rights (article L.59).
Key takeaways in 6 points
- Treat suspension as a pause: the contract and the post are kept.
- Refer to the fourteen cases in article L.34, bearing in mind the list is not closed.
- Check who pays: the employer, the INPS, or nobody under article L.38.
- Apply the article L.37 scale for illness, then check the collective agreement.
- Monitor maximum durations and decide when they expire, following the dismissal procedure.
- Name the employee being replaced in every replacement fixed-term contract.