A Simple Rule—and a Costly Misconception
"I'm going away for three weeks in August, so I won't declare anything that month." This is probably the most common phrase in direct employment—and one of the riskiest.
Under labor law, the principle is that an employee who is available to their employer must be paid. It doesn’t matter if they actually worked: what counts is that they were unable to work for a reason not attributable to them. If you are absent, cancel, or the door is closed, the impediment comes from you, not them.
The collective bargaining agreement for the domestic employer and home employment sector (IDCC 3239) adjusts this principle but does not eliminate it. It sets a single condition, and everything depends on it: was the absence provided for in the employment contract?
Article 142: Everything Depends on the Contract
Article 142 of the specific employee framework acknowledges that periods of absence or temporary unavailability of the private employer may exist. A household goes on vacation, closes the house for a week at Christmas, or is away during school holidays. This is normal, and it’s expected.
But the agreement immediately imposes a counterpart: the employment contract must include these periods. From this mention stem two opposing regimes.
Absence provided for in the contract. The employment contract is suspended during these periods. They are deducted from the monthly salary, so the employee is not paid, but they still count toward seniority calculations.
Absence not provided for in the contract. These periods do not suspend the employment relationship, and the employee’s pay is maintained. In other words: you receive no working hours, but you still pay the usual salary. These periods also count toward paid leave entitlements and seniority.
The classic example is summer vacation. You go away for three weeks in August. If this period is included in the contract, your employee is not paid for those three weeks. If it is not included, you must pay their usual salary, as if they had worked.
A General Clause Won’t Save You
A natural reaction is to include a catch-all clause in the contract, such as "the employer may suspend the contract in case of their absence." Article 142 shuts this down: any general clause allowing contract suspensions at the initiative of the private employer is invalid.
What the agreement requires are identified periods. Dates, or at least a sufficiently precise framework so the employee knows, when signing, when they will not work—and therefore when they will not be paid. This allows them to plan their year, possibly taking on another employer during those slots. A vague clause gives them none of this information, so it is deemed unwritten.
The Two-Month Notice Period for Leave
Article 140.1.1 complements the system on a different but often confused point. Unless agreed otherwise by the parties, the date of leave is set by the employer, with a notice period specified in the employment contract that cannot be less than two months.
This concerns the employee’s paid leave, not your own absences. But in practice, the two often overlap: most households align the employee’s leave with their own closure periods. Hence the value of addressing both issues at the same time—when drafting the contract—rather than on the fly.
Announcing in June that the house will be closed in July does not meet this notice period. And if the period was not included in the contract, it falls under the salary-maintenance regime.
The Pay Scenarios That Really Cause Problems
Last-minute cancellation. You inform your employee the day before that you won’t need them on Wednesday. That Wednesday is obviously not a period of absence provided for in the contract. The hours are therefore due. A one-off cancellation, however courteous, cannot be deducted from a payslip.
Hospitalization or unforeseen events. The reasoning is the same, and it may seem unfair. The agreement does not provide for any exception based on force majeure in the employer’s favor: the impediment remains on the household’s side, and pay is maintained. The Urssaf is explicit on this point: in the event of unforeseen absence for health, family, or personal convenience reasons, the employer must continue to pay and declare their employee as if they had worked their usual hours. This is precisely what insurance or providence covers—not the payslip.
The "skipped" month in the declaration. A corollary of the previous point—and a frequent error: not paying is one thing, not declaring is another. When pay is due, the Cesu declaration for the month is too. A month not declared deprives the employee of social rights and retirement quarters, regardless of any salary recall.
Imposing leave instead. Reclassifying an unforeseen absence as employee leave is not a loophole: an employer cannot impose extra leave for personal reasons. Paid leave follows its own rules, including the two-month notice period mentioned above.
The door locked, the gate blocked. The employee arrives, no one answers, and they leave. They were available, so their hours are fully due.
The technical variant is more common than you might think: the employee has a key, but a power outage blocks the electric gate, the keypad doesn’t respond, or the smart lock remains locked. The reasoning does not change one iota. Access to the home is the household’s responsibility; the impediment is on their side, and the breakdown is no more an exemption than an unforeseen hospitalization. The employee traveled, so their hours are due.
Handing over a key does not reverse the burden: on the contrary, it shows the employee was willing and able to work, and only an obstacle attributable to the home prevented it. Two reflexes are no better: unilaterally deciding to make up hours is not an option—it requires agreement between both parties. Without agreement, the day’s hours remain due.
Proof of travel. In these situations, disagreement rarely concerns the rule, almost always the facts: did the employee actually come? Hence the importance of a written report on the same day—a simple time-stamped message is enough to establish the arrival time and the reason for returning. This is also what a shared schedule resolves, where the worker can contest an absence declared by the household, rather than discovering a missing line on their pay slip a month later.
The employee’s absence. This is the symmetrical case, and it does not fall under Article 142. If the employee does not show up, the unworked hours are not paid, except under special regimes (sick leave with a certificate, paid leave, or a public holiday that meets the presence condition). The key is not to mix the two situations: the question to ask is always which side the impediment comes from.
Recurring school holidays. A childcare contract often follows the school calendar. These periods must be written into the contract, including the relevant zone; otherwise, each holiday period becomes a paid period without work performed.
Why the Error Is Discovered Late—and Costs Dearly
Salary maintenance for an unforeseen absence triggers no alerts. The Urssaf does not check it: the Cesu service records the hours you declare; it doesn’t know you were on vacation or what the contract provided. No one will flag the error at the time.
It surfaces later, usually in the worst context: when an employee requests a regularization or at the end of a contract when past payslips are reviewed. For a contract of a few hours per week, three weeks in August unpaid over two years represent a significant salary recall, to which accrued paid leave is added.
The real cost of the error is not the month in question, but its cumulative effect. And the fix comes down to a few lines written at the right time.
What Kiwisio Does in Practice
Kiwisio applies Articles 140.1.1 and 142 of the IDCC 3239 collective agreement directly, rather than a generic labor law rule:
- Employer absence periods are declared when drafting the contract, in a dedicated step of the wizard, in three forms: fixed dates, a school holiday period with the relevant zone, or a bridge day. Each period can be marked as recurring year after year.
- These periods appear in the signed contract, giving them the suspensive effect provided for in Article 142. Since a general suspension clause is invalid, this is the only way to avoid paying for an absence period.
- A reminder of the rule is displayed during input, with the distinction between a planned and unplanned absence, so the choice is made with full knowledge rather than hindsight.
- The schedule distinguishes an employer absence from an employee absence. An absence noted by the household must be declared within 48 hours and can be contested by the worker, leaving a record of both versions rather than a payslip line decided unilaterally.
- The monthly estimate incorporates these elements, so hours due for an unplanned absence appear before declaration—not after.
- The assistant is integrated into Kiwisio to check a specific absence case before validating pay.
The goal is the same as for public holidays: write the right thing at the right time—at signing—rather than discovering a salary recall at the end of the contract.
For the general framework of the contract and the place of these periods among the required mentions, see the article on drafting a Cesu employment contract. For the related case of unworked public holidays, see public holidays in home employment.