On 13 June 2023, the Luxembourg Chamber of Deputies adopted the bill amending the Luxembourg Labor Code with a view to introducing a provision relating to the right to disconnect (hereinafter the "Law"), which was tabled on 28 September 2021. The Law came into force on 4 July 2023.
The Law introduces a new Section VIII entitled "Le respect du droit à la déconnexion" in Chapter II "Obligations des employeurs" of Title I "Sécurité au travail" of Book III "Protection, Sécurité et Santé des salariés" of the Luxembourg Labour Code.
What is the impact on employers?
Implementation of a specific scheme
The new article L. 312-9 of the Labour Code requires employers to set up a scheme, defined at company or sector level, to ensure compliance with the right to disconnect outside working hours. Companies whose employees use digital tools for professional purposes will therefore have to ensure that this specific scheme includes the practical arrangements and technical measures for disconnecting from digital devices, as well as awareness and training measures and, where applicable, compensation arrangements in the event of exceptional derogations to the right to disconnect.
This specific scheme must be defined by means of a collective labour agreement or subordinate agreement. In the absence of such agreement, the specific arrangements will have to be defined at company level in accordance with the powers of the staff delegation if one exists within the company. In this case, when a company has at least 150 employees, the introduction and modification of the specific scheme will be done by mutual agreement between the employer and the staff delegation. For companies with less than 150 employees, the employer must inform and consult the staff delegation before introducing or modifying the specific scheme.
Penalty for failing to introduce a specific scheme
If the employer refuses to set up such a scheme, the Labour Code will now stipulate that in such cases the employer will be liable to an administrative fine of between 251 and 25,000 €. This penalty will be imposed by the director of the Labour and Mines Inspectorate (Inspection du Travail et des Mines “ITM”). In setting the amount of the fine, the ITM will take into account the circumstances and seriousness of the breach, as well as the employer's behaviour after the breach has been observed by a member of the ITM.
However, the legislator has given companies time to comply with the Law, since the penalty will only apply 3 years after the date of publication of the Law in the Luxembourg Official Journal.
