Special serie COVID-19 - n°6 Temporary adaptations to some employment laws

In the context of the COVID-19 outbreak, most companies are currently facing unprecedented legal issues within their organisations. As a result, they have to adapt significantly their way of working to go through this unique time in the best possible and efficient manner. In order to assist you in this task, we have identified several hot topics, which we will present in a separate newsletter, to be published over the coming days and weeks, where we will provide you with practical hints to approach the situation efficiently.
Our sixth issue will focus on the various temporary measures adopted by Grand-ducal regulations in recent weeks, which are adapting some of the provisions of the Labour Code to the exceptional situation we are facing.
Derogation to working hours and possibility to refuse/cancel holidays in specific sectors (GDR n°205, of 27 March 2020, as amended by GDR of 3 April 2020)
In order to allow the continuation of certain activities essential to the continuity of the State, temporary derogations in terms of working hours have been decided for certain sectors, i.e. the maximum working time may be increased to 12 hours per day and 60 hours per week. Companies concerned are: 
those carrying out authorised economic activities (sale of foodstuffs, pharmacies, postal services, etc.) as determined by Article 3 of the Grand-Ducal Regulation of 18 March 2020.

1. Those carrying out authorised economic activities (sale of foodstuffs, pharmacies, postal services, etc.) as determined by Article 3 of the Grand-Ducal Regulation of 18 March 2020.
2. Those carrying out essential activities as determined by Article 5 of the Grand-Ducal Regulation of 18 March 2020.the following are considered as being essential activities:

  • public services necessary for the proper functioning of the State,
  • the health and care sector, including hospital activities and medical analysis laboratories,
  • the production and distribution of energy and petroleum products,
  • the power supply sector,
  • the production and distribution of water,
  • the collection and treatment of wastewater,
  • waste removal and management,
  • public transport,
  • systems for the exchange, payment and settlement of instruments,
  • postal and telecommunications services,
  • security, cash transportation and cleaning services,
  • essential activities relating to the functioning of the financial sector and the insurance and reinsurance sector.

Derogation to working time is not automatic: a request must be addressed to the Ministry of Labour, which may grant it in whole or in part. The form is available on the website of the Inspection du Travail et des Mines, at the following address: https://itm.public.lu/dam-assets/fr/formulaires/travail/derogation-duree-travail-covid-19.pdf.
For companies listed under point (2), it is also possible to refuse any leave to employees during the period of the health crisis or to cancel those which were already approved.
Suspension of probation period during short-time work (GDR n°223 of 1 April 2020)
For companies directly affected by the closure decisions taken by the Luxembourg government and for those admitted to short-time work due to the Covid-19 health crisis, any probation period applicable to permanent, fixed-term, apprenticeship or assignment contract is automatically suspended. This suspension will last until the end of the health crisis.
Temporary derogations to the provisions governing work disability of employees (GDR n°238 of 3 April 2020 and GDR n°266 of 8 April 2020)
By derogation to the principle of continuation of payment of the salary to employees on sick leave until the end of the month in which occurs the 77th day of absence over the 18 preceding months, any day of work disability taking place during the health crisis shall be fully covered by the National Health Fund from 1st April 2020.
On the other hand, sick leave taking place during the health crisis shall not be counted as part of the 26-week period of protection against dismissal. It will not be possible to notify dismissal to employees on sick leave during the health crisis, even if the end of the 26-week period is reached. The remaining part of the 26-week period will resume at the end of the state of crisis.
Furthermore, the calculation of the 78 weeks of incapacity for work due to illness, which sets the end of the entitlement to sickness benefits, is suspended from 18 March 2020
Suspension of medical examinations (GDR N°224 of 1 April 2020)
The mandatory medical examinations required by the Labour Code, for instance hiring medical examinations, periodic examinations for workers holding a position involving risk for health and safety and medical examinations when back from a sick leave of more than 6 weeks, are not required throughout the duration of the health crisis and are therefore suspended.
Suspension of deadlines for negotiating a social plan (GDR n°226 of 1 April 2020)
The time limit of 15 days applicable to the negotiation of a social plan in the context of collective dismissals as well the deadlines related to the conciliation procedure, where applicable, are suspended for the duration of the health crisis.
Creation of a family support leave (GDR n°237, of 3 April 2020)
A family support leave has been created to help employees and self-employed workers who find themselves unable to work in order to provide care for an adult who is disabled or elderly, following the closure of a day-care centre or a training or work structure.
Three conditions are required:

  • The structure has notified the Ministry of its total or partial closure in the context of the health crisis,
  • The employee takes care of the disabled or elderly person living at home,
  • Neither the employee nor any member of the household is eligible for partial unemployment and no other means of care is possible.

An employee who meets the criteria for such leave must apply to the Ministry of Family, Integration and Greater Region for a certificate recognizing the need for such leave. This certificate has the same value as a medical certificate for the employer and the Caisse Nationale de Santé. The employee is then also protected against dismissal.
This leave is applicable retroactively to 18 March 2020 and can be divided between members of the household but cannot be taken at the same time.