Employment law
Leave and Special Absences: What You Must Grant, What You May Refuse
On 26 December, the nurse who worked the Christmas shift finds that her 25 December has been paid exactly like any other day. That same morning, a porter asks for five days off for his brother's wedding, and a care assistant announces that he is taking three weeks because he has “two years of leave saved up”. Three requests, three different legal regimes, and not one of them is where the HR manager will look for it.
1. Three families of absence that must never be confused
Fatoumata Coulibaly heads human resources at Clinique Kabala, a private establishment in Bamako employing forty-eight people and operating twenty-four hours a day. She has filed every absence request in a single binder marked “leave”. That is where her troubles begin.
Clinique Kabala and the people named in this article are fictitious: their names serve only as examples.
Malian law distinguishes three families, and each follows a different logic.
Annual leave is a right acquired month by month and measured in days. It is paid by the employer as a leave allowance, and it cannot be replaced by money.
Special leave and exceptional permissions are short absences tied to a family event. The Code caps them, protects annual leave against being charged for them, but says almost nothing about their content.
Suspensions of the contract are situations in which the employment relationship is put on hold: sickness, maternity, detention, strike, technical unemployment, widowhood, pilgrimage, elected office. Some are compensated by the employer, some by the National Social Welfare Institute, and some by nobody.
The most common mistake
Treating all of these as “leave” and deducting them from the annual balance. A permission for a family event may not be charged against acquired leave, up to ten days a year. Nor may maternity leave. Confusing them means drawing on a right the worker has earned through his work.
The real question is never whether the worker leaves. It is who pays, and against which balance.
2. Annual leave: how many days, and how they are counted
Leave is two and a half days per month of work completed during the reference period, i.e. thirty days a year, non-working days included (Labour Code, article L.151). That last point is the one almost everyone forgets: the thirty days are calendar days, Sundays included. A full year's leave therefore amounts to one month, not six weeks.
The entitlement opens after twelve months of service. The reference period runs from the date of hiring, or of return from the previous leave, to the last day before the new departure on leave. For the calculation, four weeks or twenty-four days of work count as one month of effective service. See also our article on annual paid leave.
What counts as work even though the worker was absent
The following count as periods of work for the leave calculation: periods of incapacity following an industrial accident or occupational disease, absences for medically certified sickness up to six months, rest periods for women after childbirth, and special leave for family events. Removing these periods from the count is a calculation error, not a management option.
The days that are added to the thirty
Two sets of increases are added to the main leave, and these are counted in working days. Length of service first. Family situation second: mothers are entitled to one additional working day per year of service for each child registered with the civil registry who has not reached fifteen years of age at the end of the reference period.
| Length of service in the company | Working days added to annual leave |
|---|---|
| After 15 years of service, continuous or not | 2 days |
| After 20 years of service, continuous or not | 4 days |
| After 25 years of service, continuous or not | 6 days |
Young workers have a floor: a minimum of twenty-four days for those under eighteen and twenty-one days for those aged eighteen to twenty-one, on request, even where their qualifying service is less than twelve months. Note, however, that this additional leave is not paid beyond the rights actually acquired.
Example. Aminata, a midwife at Clinique Kabala, has twenty-two years of service and two children aged six and eleven registered with the civil registry.
- Main leave: 2.5 days × 12 months = 30 days, non-working days included
- Length-of-service increase, beyond 20 years: + 4 working days
- Increase for children under 15: one working day per child, i.e. + 2 working days
- Total entitlement: 30 calendar days, plus 6 working days
The most common mistake
Counting thirty working days instead of thirty calendar days. That is a foreign rule, and it costs the company close to ten days of absence per worker per year. The opposite error also exists: refusing any leave to a worker who has not completed twelve months, when rights accrue month by month and a compensatory payment is due if the contract ends first.
Thirty days a year, Sundays included. The increases, by contrast, are counted in working days.
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3. When leave is taken, and who decides
The care assistant announcing three weeks off next week is as wrong as the HR manager claiming she can refuse him any departure until the end of the year. The Code splits the decision between the two.
The employer may postpone or bring forward the taking of leave, in the interest of the smooth running of the business, by a period that may not exceed three months without the worker's agreement (Labour Code, article L.150). Beyond those three months, the worker's agreement is required.
Carrying leave over a longer period is possible, but it lies with the worker, not the employer: it is at the worker's request that leave may be carried over, and never beyond two years of service. In that case, a minimum of eight days, non-working days included, must be taken in the first year.
Splitting leave, and its limit
Leave of fifteen days or less must be taken in one continuous block. Beyond fifteen days, non-working days included, it may be split by agreement between the parties, and one of the parts must then run for at least fifteen continuous days. Splitting therefore requires two agreements: the employer's and the worker's.
The worker remains free to take his leave in the location of his choice. Where he was recruited in a locality other than his place of work, the leave is extended by travelling time.
The most common mistake
Letting balances build up over three, four or five years, often with the worker's tacit agreement. The law stops the accumulation at two years of service. Beyond that, the company carries a leave debt on its books that can only be settled in days, since buying leave out is void, and it risks having to release several workers at once.
Three months of shifting can be decided. A longer carry-over must be requested. And it stops at two years.
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4. The leave allowance: one twelfth, not a month's salary
What the worker receives during leave is not called a salary but a leave allowance, and it is not calculated on the salary of the month of departure. It equals one twelfth of the total remuneration, in cash and in kind, received during the reference period (Labour Code, article L.157).
Excluded from that base are allowances in the nature of expense reimbursements, annual bonuses and gratuities, and benefits in kind the worker continues to enjoy during his leave. Conversely, deductions made from the salary for benefits in kind are put back into the calculation. On what remuneration is made of, see our article on wages.
Each additional day of leave granted for length of service or family situation gives rise to an allowance equal to the allowance for the main leave divided by the number of working days it contains.
Example. Aminata goes on leave after a reference period during which she received XOF 1,560,000 of remuneration falling within the calculation base.
- Allowance for the main leave: 1,560,000 ÷ 12 = XOF 130,000
- Working days contained in the 30 days of main leave: 26
- Value of one additional day: 130,000 ÷ 26 = XOF 5,000
- Six additional days (4 for service, 2 for children): 6 × 5,000 = XOF 30,000
- Total allowance: 130,000 + 30,000 = XOF 160,000
- Payment deadline: the last day before her departure
Buying leave out is void, and that voidness works against the employer
Any agreement providing for a compensatory payment in place of leave is void. An agreement signed by the worker, a bonus for not taking leave, a clause in a settlement: none of it extinguishes the right. The company that has paid will still have to grant the days.
There is one exception: where the contract is terminated or expires before the worker has been able to take his leave, a payment calculated on the rights acquired is due and paid immediately on termination. Workers engaged by the hour or by the day for an occupation not exceeding one day receive their allowance together with their wages, as a compensatory payment equal to one twelfth of the remuneration earned.
The most common mistake
Paying “one month's salary” on departure for leave. Depending on the structure of the remuneration, that may be too little, where the worker earned overtime or regular bonuses during the year, or too much, where his salary rose at the end of the period. Either way, the company is outside the text.
You do not buy leave out. You take it.
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5. Exceptional permissions: ten days, and a scale that is not in the Code
The porter asks for five days for his brother's wedding. Fatoumata opens the Labour Code and finds no scale. She is not looking badly: there is none. The only general rule is one of ceiling and allocation: up to ten days, exceptional permissions granted on the occasion of family events directly affecting the worker's own household may not be deducted from acquired leave (Labour Code, article L.146).
Only one permission is quantified by a text of general scope, and it is not in the Labour Code: birth leave. Every salaried head of family is entitled to three days on each birth of a viable child in his household. Those days may be consecutive or not, by agreement with the employer, but they must fall within a fifteen-day period including the date of birth, and they are paid as an equivalent period of work.
| 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 days for a birth? | 3 days, within a 15-day period including the birth, paid | Social Welfare Code, articles 33 to 35 |
| How many days for a wedding, a death? | No scale in the Code or in the implementing decree | Collective agreement, establishment agreement or internal rules |
| What about the “3 days wedding, 2 days death” scale? | It exists, but it applies only to domestic staff | Decree no. 96-178/P-RM of 13 June 1996, article D.86-25 |
The most common mistake
Taking the scale from the implementing decree and applying it to the whole workforce as if it were the law. That scale sits in the chapter on domestic staff and binds only them. For other workers, it is the collective agreement applicable to your branch, the establishment agreement or, failing that, your own internal rules that set the detail. If you have written nothing, you decide case by case, and you create a practice that will end up binding you.
What those days do not cost
Exceptional permissions, up to ten days a year, may not be deducted from the presence taken into account for the seniority bonus, and special leave counts as work for determining the length of annual leave. A properly granted permission is therefore neutral on both of the balances that matter.
Ten days is a legal ceiling. The detail is written by your collective agreement, or by you, so write it.
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6. Public holidays and weekly rest: the rule that surprises most
That leaves the nurse on duty on 25 December. Her day was paid like any other and she finds that unfair. The text partly proves her wrong, and this is the least intuitive point in the whole subject.
Weekly rest is mandatory, lasts at least twenty-four hours, and in principle falls on Sunday. It may never be replaced by a compensatory payment. Establishments whose activity cannot stop without serious inconvenience to community life may give it on a rota on another day: the implementing order lists them, and they include hospitals, maternity units and clinics, pharmacies, hotels and catering, water, electricity and telecommunications services, public transport and press undertakings.
What a public holiday changes depending on how pay is calculated
Decree no. 2022-0125/PT-RM of 4 March 2022 rewrote the regime of paid public holidays. Rest is mandatory for all staff, except in establishments that, by the nature of their activity, cannot interrupt work. Taking a public holiday off may never reduce a monthly or weekly salary.
But the decree then draws a distinction that many payslips ignore. Where the public holiday was actually taken off, workers paid by the hour or by the day are entitled to no wages, whereas monthly-paid workers keep theirs without reduction. Where the public holiday was worked, workers paid by the hour or by the day receive the wages corresponding to the working hours practised, whereas monthly-paid workers keep their normal salary, with no upward adjustment merely because they worked that day.
The increase does exist, but it comes from elsewhere: in establishments that cannot interrupt work, workers employed on a public holiday are entitled, in addition to keeping their salary, to a payment calculated under the overtime rules. A non-working day worked carries an increase of 50% for daytime hours and 100% for night hours.
Example. The Clinique Kabala nurse, monthly paid, worked eight daytime hours on 25 December, beyond her weekly schedule.
- Her monthly salary is unchanged: working a public holiday does not increase it by itself
- The hours worked on that non-working day are increased by 50% for daytime hours
- Had she worked the night shift, the increase would have been 100%
- The calculation is therefore made in hours, on her hourly rate, not by doubling her day
The most common mistake
Paying a monthly-paid worker double for a public holiday worked, or paying nothing at all. Both are wrong. The monthly salary does not move, and it is the hours actually worked that day which trigger the increase. Where the scheduling is complex, have your method validated by the district labour inspectorate before applying it to a whole team.
A public holiday does not double a monthly-paid worker's salary. It increases the hours it created.
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7. Maternity and sickness: the absences you do not pay for alone
A midwife announces her pregnancy. The length of her absence is set by the Code, and its cost should not stay with the clinic, subject to one condition many companies discover too late.
Every pregnant woman is entitled to fourteen weeks of maternity leave, beginning six weeks before the presumed date of delivery and ending eight weeks after. Where delivery occurs before the presumed date, the rest period is extended until the fourteen weeks have run. The worker may not be employed during seven consecutive weeks, three of which fall before the presumed date. Where sickness resulting from the pregnancy or the confinement is medically certified, she may claim a three-week extension.
Throughout the suspension, the employer may not terminate the contract. And for fifteen months from the birth, the mother is entitled to nursing breaks at the workplace, up to one hour per working day, with no reduction in pay.
Who pays, and on what condition
The daily benefit paid by the National Social Welfare Institute equals the full salary actually received at the time the contract was suspended, without any ceiling, for the whole of the pre-natal and post-natal rest. Where the employer maintains all or part of the salary during that period, he is subrogated as of right to the worker's entitlement, on two conditions: being in order with his obligations towards the Institute, and paying a share of salary at least equal to the benefit due (Social Welfare Code, article 31).
Example. The clinic maintains the salary of a worker paid XOF 210,000 a month throughout her fourteen weeks of leave.
- Period maintained: about 3.5 months
- Amount advanced: 210,000 × 3.5 = XOF 735,000
- If the employer is up to date with contributions: he is subrogated and recovers those sums from INPS
- If he is not: subrogation does not apply, the benefit is paid to the worker, and the XOF 735,000 advanced stays with him
Non-occupational sickness, by contrast, stays with you
Absence for non-occupational sickness or accident certified by a medical certificate suspends the contract for a period limited to six months, extended until the worker is replaced. Compensation falls on the employer: during the first year of service, a payment equal to the worker's remuneration for a period equal to the notice period; beyond the first year, half of his remuneration during the month that follows that first period.
The most common mistake
Advancing maternity pay without checking your position with INPS. Subrogation is not automatic: it is the counterpart of a compliance that is assessed when the claim is made, not when the company decides to catch up.
Subrogation is earned: it requires being in order with INPS on the day you claim it.
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8. The absences you must grant without paying for them
One last category unsettles employers, because it combines an obligation with the absence of any consideration. The employment contract is suspended in a series of situations listed by the Code, and in several of them the suspension is granted without payment of wages.
| Absence | What the text provides | Paid? |
|---|---|---|
| Widowhood of a female worker | 4 months and 10 days at most, on written request with the death certificate and the marriage certificate | No |
| Pilgrimage to the holy places | Duration of the pilgrimage | No |
| Detention or police custody | Suspension so long as it does not exceed 6 months | No |
| Lawfully called strike | Duration of the strike | No |
| Disciplinary lay-off | 8 days at most | No |
| Statutory congress of a trade union | On written and personal convocation | Yes, and not deducted from annual leave |
| Job search during the notice period | 1 day per week, at the worker's choice | Yes, with no reduction in pay |
| Workers' education or trade union training leave | At the worker's request | No, but treated as effective work |
Two points in that table deserve emphasis. Workers' education or trade union training leave is not paid, but it is treated as a period of effective work for the calculation of paid leave, entitlement to family benefits and length of service: not paying it does not mean not counting it. And absences for trade union congresses are paid and are not deducted from annual leave.
That leaves unpaid personal leave, which is neither leave nor a suspension as of right: a worker who, for personal convenience, temporarily stops his service after being authorised to do so receives neither salary nor accessories, and gains neither seniority nor pension rights. Its duration, renewals included, may not exceed ten years, and granting it rests solely with the employer's discretion.
The most common mistake
Refusing widowhood leave or absence for pilgrimage on the ground that they are unpaid, or granting them by drawing on annual leave. These are cases of suspension provided for by law: the employer must grant them, he does not have to fund them, and he may not charge them against a right acquired elsewhere.
Granting is not paying. And refusing is not always an option.
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9. What loose leave management costs
Breaches of the weekly rest and annual leave rules (duration, assimilated periods, carry-over, splitting, allowance, payment date, place of leave) are punishable by a fine of XOF 10,000 to 18,000, raised to XOF 100,000 on repeat offence (Labour Code, article L.324). Breaches of the exceptional permissions rules are punishable by a fine of XOF 5,000 to 15,000, which may reach XOF 100,000 on repeat offence.
Failures on maternity rules are penalised more heavily: a fine of XOF 20,000 to 50,000, raised to XOF 50,000 to 200,000 on repeat offence, covers in particular the failure to grant the fourteen weeks' leave, the ban on employment during seven weeks and the ban on terminating the contract during the suspension. Failure to allow nursing breaks is punishable by XOF 10,000 to 18,000.
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 nine workers at the clinic have been unable to take their annual leave for three years and received a payment instead.
- Breach relied on: failure to grant acquired annual leave (articles L.148 and L.151)
- Fine incurred as many times as there are workers concerned: 9
- At the maximum rate of XOF 18,000: 9 × 18,000 = XOF 162,000
- Applicable legal ceiling: 50 × 18,000 = XOF 900,000, not reached here
- Civil consequence, independent of the fine: the buy-out agreement being void, the 9 workers keep their leave rights in full
The criminal bill is therefore never the main cost. The main cost is the debt in days that the company will have to settle by releasing, all at once, the very workers it needed.
The fine runs to tens of thousands of francs. The leave debt runs to weeks of activity.
A closer look: the decree of 4 March 2022 and public holidays
Decree no. 2022-0125/PT-RM of 4 March 2022, amending decree no. 96-178/P-RM of 13 June 1996 implementing the Labour Code, rewrote the regime of paid public holidays.
It first lays down the principle of mandatory rest on those days, for all staff of agricultural, industrial, craft and commercial establishments, while reserving the case of establishments that, by the nature of their activity, cannot interrupt work.
It then states that taking a public holiday off may not be a cause of reduction in monthly or weekly salaries, and that workers employed on those days in continuous-activity establishments are entitled, in addition to keeping their salary, to a payment calculated under the overtime rules.
It finally sets out, article by article, the treatment of workers paid by the hour or by the day and that of monthly-paid workers, according to whether the public holiday was taken off or worked. It is this grid, and not a flat doubling, that must govern your payroll for the month concerned.
Key takeaways in 6 points
- Count annual leave in calendar days for the basic thirty days, and in working days for the service and children increases.
- Pay the leave allowance at one twelfth of the remuneration for the reference period, at the latest on the day before departure.
- Refuse every buy-out of leave: the agreement is void and the days remain due.
- Write your own scale of exceptional permissions, since the Code sets only a ten-day ceiling and the three days of birth leave.
- Treat a public holiday worked as increased hours rather than a doubled day, distinguishing monthly-paid from hourly workers.
- Check your position with INPS before maintaining a maternity salary, failing which subrogation will not apply.