Employment law
Special Leave and Exceptional Permissions: the Ceiling Is in the Law, the Scale Is Yours to Write
A weaver has just buried his father. He asks for three days. The HR manager opens the Labour Code, looks for the table of family permissions, and finds nothing. She grants the three days, then deducts them from his annual leave balance, as the company has always done. Those three days have just cost the mill far more than three days of production.
1. What the Code actually says: a ceiling, not a scale
Kadiatou Diallo is HR manager at Ségou Textile, a spinning mill with ninety employees. She looks in the Labour Code for the list of family events and the days that go with them. That list is not there, and it is the first thing to understand.
Ségou Textile and the people named in this article are fictitious: their names serve only as examples.
The only general rule fits in one sentence: up to ten days, exceptional permissions granted to a worker on the occasion of family events directly affecting his own household may not be deducted from acquired leave (Labour Code, article L.146).
Read it closely: the Code does not say how many days to grant. It says how many days, once granted, may not be taken back from annual leave. It is a rule of allocation, not a rule of entitlement.
The same article adds a point that is often missed: by contrast, special leave granted in addition to public holidays may be deducted if it has not been compensated or made up. In other words, days offered on top of public holidays (a bridging day, a year-end closure) may be charged against leave if they have not been worked back.
Why the rule exists
A death, a birth, a wedding cannot be planned. If the employer could make annual leave pay for them, the worker would fund his own bereavements, and annual leave, which is physiological rest time, would lose its purpose. The ten-day limit shares the burden: beyond it, the employer regains the initiative.
The most common mistake
Confusing the ceiling with a scale. Ten days is not what you must grant: it is what you may not take back. A company that generously grants twelve days in a year may perfectly well charge the last two against annual leave; one that grants three may charge none.
Ten days is not what you must give. It is what you may not take back.
2. Birth leave: the only permission quantified by a general text
Only one family event is quantified by a text of general scope, and it is not in the Labour Code. On each birth of a viable child in his household, every salaried head of family is entitled to three days' leave (Social Welfare Code, article 33).
Three points accompany that right. The days may be consecutive or not, by agreement between employer and beneficiary, but they must fall within a fifteen-day period including the date of birth. And their pay equals the wages and allowances the person would have received for an equal period of work at the same time: it is therefore not a flat allowance, but three ordinary days' pay.
The Labour Code for its part refers to the Social Welfare Code: leave granted on the occasion of births gives rise to an allowance on the conditions it lays down.
What this leave is not
It is not maternity leave, which belongs to the female employee, lasts fourteen weeks and is compensated by the National Social Welfare Institute. The three days of birth leave belong to the salaried head of family and remain at the employer's expense.
What you need to do
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3. The scale you have to write yourself
For every other event (the worker's own wedding, a child's wedding, the death of a spouse, an ascendant, a brother or a sister), neither the Labour Code nor its implementing decree sets a number of days applicable to employees generally.
A scale does exist, and it circulates widely. It appears in article D.86-25 of decree no. 96-178/P-RM of 13 June 1996, and reads: three days for the worker's wedding, one day for the wedding of one of his children, a brother or a sister, three days for the death of a spouse or direct descendant, two days for the death of an ascendant, two days for the death of a father-in-law, mother-in-law, brother or sister, three days for the birth of a child.
That scale is accurate. But it sits in the chapter of the decree devoted to domestic staff, and binds only them. Reproducing it as the law applicable to the whole workforce is an error of source, not an error of figures.
| Question | What the Malian text says | Where the rule is found |
|---|---|---|
| How many days at most? | 10 days a year may not be charged against acquired leave | Labour Code, article L.146 |
| How many for a birth? | 3 days, within a 15-day window, paid at ordinary salary | Social Welfare Code, articles 33 to 35 |
| How many for a wedding, a death? | No scale of general application | Collective agreement, establishment agreement or internal rules |
| What about the decree's scale? | It exists, but applies only to domestic staff | Decree no. 96-178/P-RM, article D.86-25 |
Where to write your scale
Three instruments can carry your scale. The collective agreement applicable to your branch, if it provides one: it then binds you. The establishment agreement, concluded between the employer and the staff delegates or union representatives, which may provide more favourable terms. And failing those, the internal rules, mandatory from ten employees in industrial, commercial and agricultural undertakings.
If you write nothing, you decide case by case. And that is the real danger: repeated decisions create a practice, the practice becomes settled, and settled practice ends up binding you more surely than a text you would have drafted yourself.
What you do not write, your successive decisions will write for you.
What you need to do
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4. What those days do not cost: annual leave and seniority
A properly granted permission is neutral on both of the balances that matter. First, annual leave: absences for special leave count as periods of work for determining the length of acquired leave. Second, the seniority bonus: paid leave and, up to ten days a year, exceptional permissions may not be deducted from the presence taken into account for it. See also our article on annual paid leave.
In practice, a worker who takes three days for a death keeps his thirty days of annual leave and continues to accrue seniority as if he had worked.
Example. Ségou Textile charges family permissions against annual leave, as it has for years. A weaver took three days for his father's death.
- Remuneration for the reference period within the calculation base: XOF 1,440,000
- Annual leave allowance: 1,440,000 ÷ 12 = XOF 120,000 for 30 days
- Value of one day's leave: 120,000 ÷ 30 = XOF 4,000
- Days wrongly charged: 3, i.e. 3 × 4,000 = XOF 12,000 to refund, plus three days of leave to restore
- Across a workforce of 90, at an average of 2 days charged per year: 90 × 2 = 180 days
- Annual cost of the practice: 180 × 4,000 = XOF 720,000, plus 180 days of leave to restore
The most common mistake
Treating the charging as an internal tolerance, because nobody complains. Leave balances may be claimed for three years, and a collective correction adds up fast: it is not three days challenged by one worker, it is three days multiplied by the workforce and by the number of unexpired years.
A properly granted permission shows on no balance. That is how you recognise it.
5. Family absences that are not permissions
Three situations look like exceptional permissions yet follow an entirely different regime. Filing them in the wrong place leads either to refusing them wrongly, or to paying for them without being obliged to.
| Absence | What the text provides | Paid? |
|---|---|---|
| Widowhood of a female worker | Suspension of the contract, 4 months and 10 days at most, on written request with the death certificate and the marriage certificate | No |
| Pilgrimage to the holy places | Suspension of the contract for the duration of the pilgrimage | No |
| Statutory congress of a trade union | Authorised absence on written and personal convocation | Yes, and not deducted from annual leave |
Widowhood and pilgrimage are cases of suspension expressly provided for by the Code: the employer must grant them, he does not have to fund them, and he may not charge them against annual leave, which is a distinct acquired right. Widowhood leave further requires a written request with two supporting documents.
Conversely, absences for trade union congresses are paid and are not deducted from annual leave: they are the only absences on this list that the employer funds.
The most common mistake
Refusing the pilgrimage on the ground that it is unpaid, or making it come out of annual leave. These are two symmetrical errors: the first refuses a suspension granted by law, the second draws on a right earned through work.
Granting is not paying. And refusing is not always possible.
What you need to do
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6. Requesting, evidencing, refusing
The Code sets neither a notice period nor a list of supporting documents for the exceptional permissions of ordinary employees. It is therefore for the company to organise the procedure, and the decree applicable to domestic staff offers a reasonable model to adapt.
It provides that the worker informs the employer of the event within twenty-four hours of stopping work at the latest, save force majeure, and that the employer may require the document evidencing the event within eight days of it. It adds that where the event occurs away from the place of employment and requires travel, those periods may be extended by agreement, that extension being unpaid.
That last point is worth carrying into your internal rules: it clearly separates permission days, which are paid, from additional travelling days, which are not. Without that written distinction, a death in the village turns into a week's absence that nobody knows how to treat.
Can you refuse?
Yes, but not in the same way in every case. The three days of birth leave are a right of the salaried head of family: they cannot be refused, only their dates are open to discussion, within the fifteen-day window. Permissions provided for by your collective agreement, your establishment agreement or your internal rules are rights you have given yourself: they cannot be refused either. A request going beyond what your scale provides, however, is for you to assess, and days granted beyond ten in the year may be charged against annual leave.
What you need to do
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7. What a mishandled permission costs
Breaches of article L.146 are punishable by a fine of XOF 5,000 to 15,000 and, on repeat offence, by a fine of up to XOF 100,000. Breaches of the annual leave rules (duration, assimilated periods, allowance, payment date) are punishable by XOF 10,000 to 18,000, raised to XOF 100,000 on repeat offence.
Above all, the fine is incurred as many times as there are breaches, in particular where several workers were employed in conditions contrary to the law, the total not being allowed to exceed fifty times the applicable maximum rate.
Example. An inspection establishes that Ségou Textile systematically charges family permissions against annual leave, across its entire workforce.
- Breach relied on: charging exceptional permissions against acquired leave, contrary to article L.146
- Workers concerned: 90
- At the maximum rate of XOF 15,000: 90 × 15,000 = XOF 1,350,000
- Applicable legal ceiling: 50 × 15,000 = XOF 750,000
- Amount retained, after applying the ceiling: XOF 750,000
- To which is added the restitution of the leave days wrongly charged, claimable for three years
This is one of the rare cases where the ceiling of fifty times the maximum rate actually bites: beyond fifty workers concerned, the fine stops growing. The leave debt, by contrast, keeps growing with the workforce and with the unexpired years.
The fine stops at fifty workers. The leave debt does not.
A closer look: why the decree's scale applies only to domestic staff
The confusion deserves explanation, because it is almost universal and has a textual cause.
Decree no. 96-178/P-RM of 13 June 1996 implementing the Labour Code contains a whole chapter devoted to domestic staff, numbered from article D.86-1. It contains the classification of domestic staff into seven categories, the probation rules specific to those jobs, the weekly rest arrangements, the regime of public holidays, paid leave, and the scale of exceptional permissions in article D.86-25.
All those articles share the same numbering and the same scope. The permissions scale is framed by article D.86-24, on unauthorised absences of domestic staff, and by article D.86-26, on the sickness of a domestic employee. The context leaves no doubt as to its perimeter.
The lesson is not that the scale is bad: it is reasonable, and many collective agreements come close to it. It is that it does not bind your company of its own force, and that presenting it to your employees as the law exposes you to having to apply it afterwards as a commitment, with no text to rely on to step away from it.
Key takeaways in 6 points
- Remember that article L.146 sets a ten-day allocation ceiling, not a number of days to grant.
- Grant three days of birth leave to every salaried head of family, within the fifteen-day window around the birth, paid at ordinary salary.
- Write your own scale into your establishment agreement or your internal rules, failing a collective agreement providing one.
- Never charge the first ten days of permission against annual leave or the seniority balance.
- Treat widowhood and pilgrimage as suspensions granted but unpaid, and trade union congress absences as paid absences.
- Organise in writing the notice period, the supporting document expected and the treatment of travelling days.