2 Measures to Benefit Employees in the Fight Against Coronavirus

1) Family leave for the child

In the fight against this new coronavirus, COVID-19, to limit/slow its spread, the government has notably taken the radical decision to temporarily close public and private schools and training establishments, as well as reception facilities and boarding schools from March 16, 2020.

This closure, initially applicable until March 29, 2020, has now been extended to May 3, 2020.

The corollary of this measure was, of course, the need to enable parents who could find no other solution to look after their child at home, without fear of being in breach of their professional obligations to their employers, and without exhausting their social rights already provided for in this respect.

It was against this backdrop that ordinary family leave was modified to introduce “extraordinary” family leave in connection with the coronavirus, which is available to all employees and is counted separately from the first leave. The characteristics of this leave were recently clarified by the government.

Under what conditions?

As a reminder, the principle is that only children aged under 13 and directly affected by the above-mentioned closure measure are entitled to “extraordinary” family leave.

The parent exercising his or her right to this leave must not have found other solutions for looking after the child (neighborhood, specialized establishment, etc.) and must be affiliated to the Luxembourg social security scheme.

In this respect, it was recently pointed out that the parent who benefits from telecommuting is obliged to work and is, de facto, unable to look after the child, so that the other parent can benefit from family leave.

Of course, parents of the same child cannot take “extraordinary” family leave at the same time, but they can take it alternately to ensure continuity of the child’s care at home.

With this in mind, since March 30, the government has decided that short-time working takes precedence over family leave: the parent who has been granted short-time working cannot take family leave, and neither can the other parent, since the first parent is then available to look after the child.

Secondly, the personal situation of each parent is taken into account, as well as that of the household: if one member of the household is available to look after the child (for example, this member is not working or is partially unemployed), the parents of the children cannot benefit from the leave in question.

Furthermore, in a blended family, if the child’s parent(s) work(s), even if they are not the biological parent, and provided that the child concerned is dependent on the household, the member of the blended family can benefit from family leave.

If one of the parents is already on maternity/parental leave, the government recommends not taking family leave, unless there is no other possible solution.

Finally, cross-border commuters working in the Grand Duchy of Luxembourg are therefore affiliated to the Luxembourg social security system and can benefit from this specific leave, even if the child is not attending school in the Grand Duchy of Luxembourg, and provided that the school or reception facility in the parent’s country of residence is also closed.

It has been announced that checks will be carried out by the competent national authorities after the crisis and will, if necessary, give rise to reimbursements if the above-mentioned conditions are not met.

For how long?

Leave for family reasons has a limited duration: it can be taken and extended for the duration of the closure of schools and reception facilities, currently until May 3, 2020.

On the other hand, employees may interrupt the family leave they take with periods of work (day, half-day, even one hour), provided they inform their employer.

What’s the procedure?

An extremely simplified procedure has been established for exercising the right to family leave:

1. inform the employer as soon as possible, indicating the start and end of the leave.
2. complete, date and sign the new special certificate, which has been freely available on the Internet since March 30, and submit it immediately to the employer and the CNS (in writing or by post), even if the previously available form has already been sent.

As this certificate does not include a start or end date, the employee must inform his employer of the terms and conditions of the family leave he is taking (any periods of work, start and end dates, which currently cannot exceed May 3, 2020).

Unlike ordinary family leave, “extraordinary” family leave under COVID-19 does not require a medical certificate. The aforementioned form constitutes a medical certificate for the employer and the CNS.

The absence of a parent-employee benefiting from family leave is thus treated as an absence due to personal illness.

Do you pay the employee’s salary?

The parent is entitled to continued remuneration, which will in practice be paid by the employer, who will then be reimbursed for the salary paid and the employer’s contributions by the Employers’ Mutual Society.

In order to financially support employers who find themselves obliged to continue paying the employee’s full remuneration, the Centre Commun de la Sécurité Sociale will, from mid-April 2020, pay them an advance to cover a substantial part of the aforementioned reimbursement.

Employer’s reaction and possibility of dismissal?

If the parent-employee has complied with the relevant procedure, the employer cannot refuse the requested family leave, and the parent’s absence is justified.

Furthermore, in the absence of any specific legal provision, the same protection as for ordinary family leave should apply for the duration of “extraordinary” family leave linked to COVID-19.

The employer, duly informed of the employee’s decision to take family leave, is therefore prohibited from dismissing the employee with notice, or from convening an interview prior to such dismissal.

If the employer does not comply with this prohibition, the dismissal with notice will be declared unfair by operation of law, entitling the parent-employee to damages.

However, the employer retains the right to dismiss the employee with immediate effect for serious misconduct on the part of the employee. Nor does the protection described above prevent the expiry of a fixed-term employment contract or the automatic termination of the employment contract in the event of the employer’s bankruptcy.

2) Family support leave for dependent relatives

In the same vein, by Grand Ducal regulation of April 3, 2020 with retroactive effect from March 18, 2020, the government has also introduced specific leave for family support.

This leave enables employees to take care at home of a disabled or elderly adult suffering from a particularly severe loss of autonomy, usually cared for by a reception, training or daytime work structure, as well as any approved psycho-geriatric center which has had to halt all or part of its activities due to the current crisis.

Indeed, before the above-mentioned Grand-Ducal regulation, the employees concerned had to take ordinary leave to look after the above-mentioned persons, a situation which the government wished to remedy.

The procedure to be followed is identical to that for “extraordinary” family leave under COVID-19, with the following two exceptions:

• A specific form must be used, which is also freely available on the Internet and must be sent to the Ministry for the Family, Integration and the Greater Region, which returns a signed certificate, in duplicate, as a medical certificate;
• Finally, the employee must submit one copy of this certificate to the Caisse Nationale de Santé and another copy to his employer.

The essential features of this new leave are essentially identical to those of the “extraordinary” family leave associated with COVID-19.