Luxembourg - Covid Check and employers

As announced during our webinar held on 13 October, please find below the key takeaways from the law of 18 October 2021 introducing the possibility for an employer to use the Covid Check system (the “Law”).

 Key elements

• Time period: the Covid Check system can be implemented by any Luxembourg employer during the period from 19 October 2021 to 18 December 2021. Depending on the pandemic situation by then, the possibility might be renewed.
• Obligation: it is a possibility, not an obligation for the employer to use the Covid Check system.
• Scope: the employer can choose to use it partially (e.g. access to canteen, meetings) or totally (i.e. entering the premises)
• Social distancing: if the premises are only accessible to people with a green Covid Check, protective measures could be eased (e.g. not wearing a mask anymore, removing social distancing, etc.).
• Formalities: if using the Covid Check system, the employer shall notify to the Health Directorate, indicating for how long and where it will be used (Notification du régime CovidCheck - Coronavirus - Informations officielles - Luxembourg (public.lu)).
• What sort of testing is accepted: vaccination certificate, Negative test certificate certified by a lab, a doctor, a pharmacist or other health professional, a recovery certificate. Rapid tests are only accepted until 31 October 2021.

Main employment law related uncertainties

• Sanctions: the law does not contain any indication on how the situation should be handled should an employee refuse to do the Covid Check or gets a red Covid Check result.
• Costs: the law does not contain any indication as to whether the costs or rapid tests shall be borne by the employee or the employer and whether the time to take the test shall be seen as working time.

Recommandations

• Scope: determine whether you want to apply it to enter the building or only for specific events.
• Data protection: do not process any of the data deriving from the use of the Covid Check (even if this means that employees need to show their certificate every day when entering the premises for instance).
• Staff delegation: if you have staff delegates in place, do not forget to involve them (including the health and safety delegate) prior to implementing the system.
• Protective measures: as some variants spread also among vaccinated people, occupation health recommends to maintain some protective measures.
• Sanctions: as consequences are not determined by the law, any disciplinary sanction should be carefully considered before being implemented and other possibilities should be offered to the employees without a valid Covid Check to continue working (before any coercive measure is taken).

To be followed

The main trade unions are against this measure as the law is not precise enough and leads to too many uncertainties. They aim at discussing with employers’ trade unions in order to set some guidelines around the use of the Covid Check system and have asked the government to gather around the table to renegotiate the provisions of the law by 31 October 2021 so the situation may change again in the next coming weeks.