Work-life balance: new extraordinary leaves and flexible work arrangements for employees in Luxembourg
Senior Knowledge Lawyer
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The work-life balance of parents and caregivers is at the heart of a new law (hereafter the Law) that has just been passed by the Luxembourg Parliament. The Law (deriving from bill n°8016), which transposes the European directive EU/2019/1158 of 20 June 2019, creates two new extraordinary leaves and a new right to request a flexible work arrangement.
The Law is expected to enter into force four days after its publication in the Mémorial, which we anticipate will be in the coming weeks. Below is an overview of the key measures of the Law.
Two new extraordinary leaves
Employees will be entitled to two additional extraordinary leaves under the Labour Code:
- one day of leave for force majeure related to urgent family reasons in the case of illness or accident requiring the immediate presence of the employee; and
- five days of leave to allow employee caregivers to provide personal care or assistance to a family member or a person who lives in the employee’s household and who has a serious medical reason requiring substantial care or assistance.
These two types of leave accrue over a “floating” period of 12-months (not necessarily the calendar year).
The leave for force majeure related to family reasons does not require any specific proof. The caregiver's leave requires (i) proof of the family relationship or of the cohabitation and (ii) a medical certificate attesting the medical reason justifying the need for care or assistance.
In order to better distribute the financial burden generated by these two new types of leave, the Government will co-finance 50% of the total cost (subject to a cap). Employers must apply for this reimbursement within six months from the date of the respective leave, via a dedicated secure electronic platform. This timeline enables employers to collect several reimbursement requests and submit them jointly.
Here are the main aspects to remember about these two new extraordinary leaves:
|Leave for force majeure
|Duration for full-time employees (to be pro-rated for part-time employees)
|1 day / 8 hours
|5 days / 40 hours
|Period of 12 months
|Person concerned in the employee's entourage
|Not limited to “family members” (i.e. not limited to son/daughter, mother/father or spouse/partner)
|Limited to “family members” i.e. son/daughter, mother/father or spouse/partner
|Possibility to divide leave into hours
|State financial contribution
|50% (via reimbursement)
|Obligation to provide information and requirement for a medical certificate
|Oral or written notification on the 1st day of absence at the latest
Oral or written information on the first day of the absence
On the third day of absence at the latest, submission of a medical certificate attesting the serious medical reason + a document proving the family relationship or the cohabitation
|Sanction if dismissal in retaliation for requesting or benefiting from one of the leaves of absence
|Dismissal null and void
|Penalties if the employer refuses leave
|Up to EUR 5,000
The parliamentary works of the Law clarify some practical points:
- The employer cannot force the employee to choose leave for family reasons rather than leave for reasons of force majeure concerning the employee’s child.
- A leave for force majeure is only possible if a situation of force majeure exists. It is therefore not possible to benefit first from a caregiver's leave and then extend it by a leave of force majeure. But the opposite is possible.
- Although this is not explicitly stated in the Law, it seems to be the legislator’s intention that the caregiver’s leave shall not be combined/cumulated with the social leave (which is included in some collective bargaining agreements). Thus, the caregiver's leave cannot be taken in parallel and/or in addition to the social leave.
Finally, for the sake of completeness, please note that another bill (n° 8017) concerning extraordinary leaves has also been adopted today. It aims at extending the right to extraordinary leave in the case of the birth of a child (i.e. 10 days of extraordinary leave) to any person recognised as a second parent. Thus, this would enable same-sex couples to benefit from this leave.
A new right to request a flexible work arrangement
Every parent of a child under nine years old and every caregiver has the right to have a meeting with their employer to request a flexible work arrangement, provided the employee has six months of service with the employer.
A "flexible work arrangement" is defined by the Law as "the possibility for the employee to adjust their work regime, including by using remote work, flexible working hours or a reduction of the working time". This is not an exhaustive list and the employer and the employee can agree on any other flexible work arrangement, as long as it is not detrimental for the employee.
The flexible work arrangement must be requested for a fixed period not exceeding one year. The employee must return to their initial work regime at the end of that period or may do so earlier with the employer’s consent, if the situation that led to the request for a flexible work arrangement were to change.
The employer has one month to respond to a request for a flexible work arrangement and should state in writing the reasons for any refusal or postponement. The employer assesses the request taking into account both their own needs and those of the employee.
Here are the main points to remember about the right to request a flexible work arrangement:
|Request for a flexible work arrangement
|Parent of a child under the age of nine or caregivers (as defined by law)
|At least six months of service with the employer
|Possibility of flexible working arrangements (e.g. remote working, flexible working hours, reduced working hours, etc.)
|Fixed period not exceeding one year
|Back to the initial work regime
|At the end of the period or earlier with the employer's consent
|Meeting with the employer; response within one month; written reasons if refused or postponed
|Needs of employer and employee
|Sanction if dismissal in retaliation for requesting or taking up a flexible working arrangement
|Dismissal null and void
|Penalties faced by the employer
|Up to EUR 2,500 (doubled for a repeated offence within two years)
Protection & sanctions
An employee who requests or benefits from one of the two new extraordinary leaves or from a flexible work arrangement is protected against any form of retaliation. Any sort of retaliation and in particular a dismissal based on any of these leaves or flexible work arrangement, or the request thereof, would be null and void.
The Law provides for a fine of EUR 251 to 2,500 for employers who do not comply with their obligations in the framework of the implementation of flexible work arrangements.
More rights for the employee in the context of parental leave
Finally, the Law provides for an additional requirement of written justification by the employer when:
- refusing a request for split parental leave, or
- requesting the postponement of the second parental leave.
Moreover, before postponing the second parental leave to a later date, the employer must first offer the employee an alternative form of parental leave.