As announced by the Luxembourg government, each employer in Luxembourg will be obliged to apply “3G” COVID Checks at the office for a temporary period as from 15 January 2022 until 28 February 2022 (with a possibility of extension) in accordance with the law published on 16 December 2021.
> Obligation of the employer to apply the COVID Check
- Any employee and independent worker will need to provide a valid COVID Check, which consists of:
- a vaccination certificate,
- a recovery certificate,
- a negative test (PCR 48 hours valid or certified antigen test 24 hours valid to be made outside the working hours of the employee), or
- a certificate of non-possibility of vaccination (which gives the possibility, in addition of a negative PCR or certified antigen test, to take a self-made antigen test directly at the premises of the company).
- If an employee does not want to - or is not able to - show a valid COVID check certificate, the employee is not permitted to enter the work premises.
- The employer and the employee can find alternatives and agree that the work can be performed by teleworking. Since telework requires a bilateral agreement between the parties, this form of work performance cannot be imposed by the employer without the consent of the employee.
- If the alternative of telework is not possible, the employee can take holidays to compensate his/her absence if the general rules on holidays are observed: the employer can deny the holiday request based on the needs of the company or the justified wishes of other employees. This rule should avoid to prevent people with a valid certificate to go on leave due to the absence of employees with no valid certificate.
- If the employee has exhausted his/her holidays and does not want to take the necessary steps to submit a valid COVID Check certificate, the employer is allowed to exempt this employee from work and to suspend his/her remuneration. This exempted period of time will not be taken into account when calculating the amount of paid holidays due, the conventional rights linked to the employee's seniority and the unemployment benefit, as well as the compensatory allowance in the event of professional reclassification.
- The obligation to apply the COVID Check can be extended to all or a part of the workplace for external persons.
- An employee’s refusal to show a valid COVID Check cannot be a ground of dismissal. A dismissal based on such refusal is to be considered as null and void. The employee can file an application before the labour court within 15 days as from the dismissal to request his/her reintegration. An appeal against the first instance judgment is also possible.
- An employee, who is exempted from work and does not perceive his/her remuneration during this period of time, shall remain affiliated with the social security.
> Obligation of the employer to check the COVID Check certificates
- The employer has the obligation to check the COVID certificate of each employee before entering the premises of the company.
- However, in order to simplify the procedure and to reduce the frequencies of controls under the COVID Check regime, vaccinated and recovered employees can inform their employer – at their own initiative - to be put on a list of certified employees. It is important to note that employers shall not ask their employees if they are vaccinated or not, but should only inform them of the list and the opportunity for them to be put on the list upon their request to avoid a daily COVID Check.
- The employer is allowed to create this list, which can only include the name and the duration of validity of the COVID Check certificate.
- As the inscription of the employee on such list must remain voluntary at any stage, the employees may request the withdrawal of their name on the list at any moment without any reason to be provided to the employer.
- The access to the list shall be limited to the employer, the person in charge or designed delegated person.
- The list can only be used by the employer as long as the applicable COVID law is in force.