Covid-19: Luxembourg Employment News
Can an employer force their employees to get vaccinated against Covid-19??
No
As of now, no vaccine has ever been made compulsory in Luxembourg. An employer only has the duty to make the vaccine available to their employees under certain circumstances. For example, if after an evaluation of the risks it is considered that employees could be in contact with biological agents covered by a vaccine then, vaccination should be proposed to them, free of charge, but could in no way be imposed.
Rapid Covid-19 screening tests are now available. Can an employer force their employee to get tested?
No
The employer can only offer tests to their employees but cannot in any case force them to take it.
My employee contracted Covid-19 or is required to self-isolate. Do I still need to pay their salary?
Yes
If an employee contracts Covid-19 (or is required to self-isolate or go into quarantine), the normal sickness absence provisions of the Luxembourg Labour Code apply. Consequently, in such case of absence instructed by doctors, the employee will receive a medical certificate and the absence will be treated as normal sickness absence.
In accordance with the law of 19 December 2020, the employee required to self-isolate or go into quarantine shall inform his/her employer, without delay, on the first day of his/her absence and will have to provide an official certificate within 8 days to justify his/her absence.
As for the burden of the salary during this absence, based on the Grand-Ducal Regulation of 3 April 2020, Social Security was directly supporting the cost but these exceptional provisions do no longer apply and the normal rule is back in force, i.e. the employer bears the cost of his employee’s salary during this time.
Is teleworking mandatory?
No
It remains on a voluntary basis for the employers to implement teleworking.
However, the Government and regulatory authorities (such as the CSSF) strongly urge employers to give their employees the means to accomplish their tasks via teleworking whenever possible. In addition, employers should keep in mind their potential criminal and civil liabilities and ensure health and safety for their employees. Therefore, teleworking is not mandatory but it is strongly advisable to do so whenever it is possible.
Employers should issue clear guidance as to when employees should stay away from the workplace and ensure this is regularly updated to reflect government health advice. Employees will have to follow their employers’ instructions.
Even when homeworking is not possible employers may nonetheless decide to request some of their employees to stay home anyway as a precautionary measure but must specifically waive their obligation to perform their work. Such decision shall be based on clear criteria communicated to the employees and staff delegates if any (to avoid any discrimination risks). In such case, the employer will have to continue to pay their salaries as normal.
Does teleworking in the context of Covid-19 impact taxation of cross-border workers?
Regarding the bilateral treaties with neighboring countries to avoid double taxation for cross-border workers, it has been agreed that the number of days spent teleworking by an employee living in France, Belgium or Germany, will not be taken into account for the computation of the thresholds determining the country in which the employee will be taxed.
These derogations are in force until 31 March 2021 for Belgium and France and the agreement with Germany is tacitly renewed every month.
For information on taxation of cross-border works in other countries than Belgium, France and Germany, we advise you to contact our tax team.
Does the employer need to formalize the agreement on teleworking consequent to the Covid-19 pandemic?
Yes
A new Convention regarding teleworking has been signed by the unions UEL, OGBL and LCGB on 20 October 2020. One of its main objectives was to give a legal basis to occasional teleworking such as the one we have observed during the pandemic. This new Convention will apply to every employer as soon as a Grand-Ducal Regulation declares it of general obligation (which is expected shortly).
In this context, a simple text or email can serve as proof of the agreement on occasional teleworking between the employer and the employee.
Can an employee request to take a leave of absence to take care of a family member?
Yes
The law of 20 June 2020 introduced a family support leave (‘congé pour soutien familial’) which allows employees to take a leave when their disabled or elderly relative’s care facility has closed because of the pandemic. This leave can be requested for the period from 25 June 2020 to 24 May 2021.
The reasons to apply for a ‘leave for family reasons’ (’congé pour raisons familiales’) have also been extended to the situation where a child has been placed in quarantine or isolation by order or recommendation of the Health Directorate or any other competent authority, one of the parents of the child may use the leave for family reasons for the duration of the quarantine or isolation period.
In accordance with the law of 24 December 2020 and until 20 January 2021 included, employees may also apply for a ‘leave for family reasons’ when their child (until 13 years old) cannot go to school because of public restrictions.
Does the current pandemic have an impact on the right of the employer to dismiss an employee?
Yes
From 18 March until 24 June 2020 (i.e. during the state of emergency), the period of protection against termination due to illness for 26 weeks was temporarily suspended, but this period of protection resumed its course the day after the end of the state of emergency, if the employee was still unable to work.
Under the law of 20 June 2020, from the first day of the twenty-seventh week of protection against dismissal, the employer is authorized, to notify the employee of the termination of his/her employment contract, only for gross misconduct.
As a consequence, an employee whose illness began before the state of emergency, or between 18 March and 24 June 2020, is protected against termination (except for gross misconduct) as long as they deliver medical certificates on time to their employer, during the post-emergency period.
Does the current pandemic have an impact on the right of the employer to dismiss an employee?
Yes
When receiving a vulnerability certificate from an employee, the employer must ensure that the employee can carry out their duties in complete safety and health, either by adapting their work (workstations without exposure to the public, special norms, etc.) or by teleworking when possible.
Vulnerable workers are people suffering from the following conditions:
- diabetes;
- cardio-vascular conditions;
- chronic disorders of the respiratory tract;
- cancer;
- lowered immunity caused by illness or treatment;
- morbid obesity.
Please note that since 1 October 2020, pregnant women are now considered as vulnerable workers as well.
