Covid-19 coronavirus: FAQs for employers in Luxembourg
PSL - Senior Associate
28 February 2020
1. What is the nature and extent of the employer's obligation with respect to the Covid-19 coronavirus?
In general, the Labour Code provides that "the employer is obliged to ensure the safety and health of employees in all work-related aspects"; "within the framework of his responsibilities, the employer shall take the necessary measures for the protection of the safety and health of employees, including activities of prevention of occupational risks, information and training as well as the establishment of the necessary organisation and means".
This obligation of the employer to ensure the safety and health of employees is obviously also applicable in the context of trips that an employee carries out abroad on behalf of his Luxembourg employer.
In concrete terms, employers have a reinforced obligation of means, which means that they must take preventive measures and if the risk should prove to be real, also take measures to protect employees.
2. What concrete steps must / can the employer take?
In order to ensure prevention, the employer can take the following measures:
- Check with official sources (e.g. website of the Ministry of Foreign Affairs or the health authorities of the countries concerned and Luxembourg, but also official sources such as the World Health Organisation) to see if there is an official recommendation.
- Inform employees of the steps taken and the results obtained (e.g. if applicable, absence resulting from official recommendation not to travel to a particular region).
- Provision of specific equipment such as hydro-alcoholic solutions for hand disinfection, and masks if the risk becomes real.
The steps taken by an employer should ideally be documented, so that it can be proven that preventive measures have been taken and, if necessary, that there is no ban on travel to a certain region.
Should the risk prove to be real, the employer can take the following measures:
- Teleworking: if the job position allows it. The various classical constraints of telework apply even if there is a compelling reason for it. The regulatory constraints of professional secrecy for all companies in the banking and insurance sector, and tax constraints, particularly for persons residing outside of Luxembourg, continue to apply in the same way. Provision should also be made for a procedure to provide an ad hoc framework for such telework, unless such a procedure already exists within the company.
- Extraordinary leave: if telework is not possible because, for example, the job position does not allow it, then the employer would have no choice but to grant extraordinary leave to the employee(s) with continued pay without counting a single day of ordinary leave.
3. What responsibility does an employer have in the event of contamination of an employee?
If a health or safety incident occurs during an employee's assignment abroad (e.g. a virus infection), the employer can only be held criminally liable if the employee can provide evidence that the employer has breached his/her health and safety obligations.
It is therefore essential for any employer to be able to demonstrate, where appropriate, that all (reasonable) preventive and employee protection measures have been taken, particularly in the context of assignments in geographical areas that may involve a certain safety and/or health risk.
4. Can the employer prohibit an employee from making a private trip to a high-risk area?
If the trip is organised in the context of the employee's private life, the employer cannot prohibit it; at most he can discourage it. The employer may, for example, invite the employee to inform himself of the risks associated with such a trip by providing him with useful official addresses where he can find up-to-date information on the risks.
If an employee nevertheless travels to a high-risk area despite being discouraged from doing so, the employer could require to be informed by the employee; he may also warn the employee that he or she may be refused access to the workplace if the health and safety of the employees is at risk.
The employer may also ask a doctor to carry out a medical examination before the person returns to work.
5. Can the employer prohibit an employee from entering the workplace if he fears that the employee has been in contact with persons likely to be carriers of the virus or after having stayed in a high-risk area?
As the employer is in charge of the organisation of work in his company and, as a corollary, is responsible for the risks linked to the operation of his company, he is entitled to refuse an employee access to his workstation. The employer must not, however, commit an abuse of right and the risk justifying the refusal to access the workplace must be serious.
Mere suspicion does not entitle the employer to refuse the employee access.
In case of doubt, the employer always has the option of calling upon his occupational health service (ASFT or STM).
6. Is there a leave of absence to cover an absence related to exposure to the virus?
There is no special leave for employees who have been in contact with people who may be carriers of the virus or after having been in a high-risk area.
Moreover, there is no accidental or involuntary technical unemployment scheme applicable in the event of a risk of epidemic.
If the employee presents symptoms that prevent him/her from working, he/she will be considered a sick employee and will be subject to the same obligations and regime as any sick employee (obligation to inform on the first day of absence and to provide a medical certificate at the latest on the third day of illness).
In the absence of symptoms, it is impossible for a doctor to put the employee on sick leave. The Minister of Health, Paulette Lenert, however, specified that without symptoms, a doctor from the Health Department or the Health Inspectorate can request a mandatory leave for quarantine. In this case, the days of quarantine can be covered by Social Security.
When the employee is the parent of a child requiring his presence with him/her for health reasons, he/she will be entitled to leave for family reasons if the conditions are met (balance of days available per age group of the child, up to and including 18 years of age).
7. Does the employee have an obligation to inform his/her employer of possible exposure to the virus (e.g. travel to an affected region, contact with a person returning from an affected region, etc.)?
There is no legal obligation on the part of the employee to inform his/her employer of a possible exposure to the virus. However, on the basis of the obligations of loyalty and good faith that must govern all employment relationships, the employer is entitled to expect to receive such information, which will enable him to take the preventive measures he considers necessary.
The employer must communicate with his employees and stress the importance of transparent information.
8. Does the employee have a right to withdraw? In particular, can the employee refuse to work or to carry out an assignment for safety reasons?
The Labour Code provides any employee with the right to withdraw in case of serious, immediate and unavoidable danger. The Labour Code provides that in such a case, the employee may not suffer any prejudice relating to the exercise of his/her right to withdraw, i.e. no sanction may be pronounced by the employer if the exercise of the right to withdraw is justified. A dismissal carried out in violation of this prohibition of sanctions is automatically abusive.
9. Can the employer oblige an employee who cannot come to his/her workplace to do remote work?
If the job allows it and if the employer has provided the employee with the equipment to enable him/her to do remote work, the employer can oblige him/her to work.
As with telework, different regulatory and fiscal constraints apply.
The costs related to remote work are borne by the employer. An employee's refusal to work remotely, without valid justification, may be sanctioned by the employer.
10. Can an employee refuse to take a business trip on the pretext that he/she fears being in contact with persons likely to be carriers of the virus or to have to stay in a high-risk area?
Before organising a business trip, it is recommended that all employers check with official sources (e.g. the website of the Ministry of Foreign Affairs or the health authorities of the countries concerned and Luxembourg, but also official sources such as the World Health Organisation) to see if there is an official recommendation not to travel to the country/region of the trip and to inform the employee required to travel of the result of these checks.
After this initial check, a distinction must be made according to the country of the trip.
If the trip is planned to take place in a country/region at risk, in accordance with its obligation to ensure the safety and health of employees, the employer should cancel or even postpone the trip. If the employer maintains the trip, the employee can invoke his right to withdraw and he/she will not be sanctioned for this. Sending an employee on a trip to a high-risk area would certainly constitute a breach of the employer's obligation to protect the health and safety of employees.
If the planned trip is scheduled to take place in a country/region that is not on the official list of countries/regions at risk, the employee's refusal may be subject to disciplinary action up to and including dismissal for refusal to comply with an order.
11. Can an employee refuse to have a meeting with people from at-risk countries?
If the slightest risk exists, it is the employer's responsibility to find alternative solutions to avoid close contact (e.g. videoconferences, conference calls).
If there is no risk, the employer has no obligation to respond favourably to the unfounded fears of his employees. Transparent and up-to-date information is important to avoid any psychosis.
12. Should the employer grant an employee's request to telework in order to care for children who are temporarily not allowed to attend their school?
In general, an employer has no legal obligation to accept a telework request and the employee will have to apply for leave. However, if the employee has a child who has potentially been in contact with a person who may be a carrier of the virus or who has stayed in a high-risk area, it is in the employer's interest to grant telework as a preventive measure.
13. What are the means available to an employer faced with employee absences?
Any employer may, in compliance with the legal conditions and limits:
- Request overtime by notifying ITM.
- Conclude fixed-term contracts.
- Refuse to take annual leave if the needs of the service require it.
- Reassign internally (in the event of unilateral changes unfavourable to the employee, a specific procedure similar to the dismissal procedure – notice period and notification of reasons in the event of a written request from the employee, is legally required).
14. Are there any specific recommendations if the employer is a regulated professional of the financial sector?
The CSSF published a press release on 2 March 2020 which clarifies the measures that a professional of the financial sector (a PFS) may take to ensure business continuity in the current exceptional health situation. To ensure the protection of its staff, a PFS may decide to ask one or more of its employees to work from home, subject to satisfactory computer security conditions. Also, if required, a PFS may activate its business continuity plan and use other production sites (either within or outside Luxembourg), if these are available. No prior authorisation by the CSSF is required to activate such measures.
Following this press release, the CSSF issued a FAQ on 3 March 2020 with recommendations on the minimum IT security conditions for remote access implemented to meet the exceptional situation created by Covid-19.