Managing employees, cross-border workers and human resources
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When Covid-19 became a pandemic, you (like so many businesses) may have had to close temporarily, and tackle the move to large-scale remote working – maybe even abandoning your established methods in the office from one day to the next. You may have had to resume operations in a new kind of “office”, or perhaps you returned to the office with a new paradigm for office life. You may be determining how to balance remote work with in-office presence, while grappling with the myriad issues that arise with the constant changing of the law.
Whatever your challenges, our experts are here to assist and guide you through this new and complex framework.
Click here to download our brochure with:
- Typical challenges faced by our clients
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Your contacts:
- Philippe Schmit
Partner
Employment Law, Pensions & Benefits
- Astrid Wagner
Partner
IP, Communication & Technology
(Updated on 17/03/22)
From 11 March 2022, the CovidCheck regime can no longer be used in the workplace (except in health care facilities). There is no requirement to wear masks or stay 2 metres apart, although the Health Ministry still recommends that masks be worn in the event of gatherings indoors where space is limited, especially when there is poor ventilation.
Useful link:
Recommendation from the Health Ministry (FR)
Your contact for more details: employment@arendt.com
(Updated on 29/06/22)
In health care facilities, the CovidCheck regime is currently operated under the 3G system.
This specific protocol requires participants to show that they:
Your contact for more details: employment@arendt.com
(Updated on 17/03/22)
The Health Ministry recommends that masks be worn in places where social distancing cannot be ensured (i.e. when space is limited) and/or when the room is poorly ventilated. This applies even now that the CovidCheck regime has been lifted everywhere but in health care facilities.
Because there is no longer any law requiring that masks be worn at the workplace (except health care facilities) and based on the new recommendations of the Health Ministry, it is our professional view that employers can no longer require their employees to wear masks in the workplace. However, they can encourage this practice and should tolerate it.
Useful link:
Recommendation from the Health Ministry (FR)
Your contact for more details: employment@arendt.com
(Updated on 17/03/22)
Health care facilities must check whether their employees have a valid certificate to access their premises.
However, employers are not required to ensure that certificates remain valid all day, nor to check when they will expire. Only a single check must be performed when an employee first enters the premises in order for the employer to satisfy its obligations under the CovidCheck regime. This control by the employer is therefore valid for the rest of the day. It is the employees’ responsibility to ensure that their certificates are valid.
If an employer does not wish to scan every employee’s certificate with the Covidcheck.lu app each day, it remains possible for the employer to draw up a list of certificate-holding employees with each person’s first name, family name and certificate expiry date. Employees must register for such lists voluntarily, and must not be compelled to do so. In the course of this process, employers must ensure that data protection requirements are met.
Useful link:
Your contact for more details: employment@arendt.com
(Updated on 17/03/22)
Luxembourg employment law does not authorise employers to impose mandatory vaccination on employees. The decision to be vaccinated falls within the scope of an employee’s physical integrity, and the employee retains total discretionary decision-making power in this respect. Furthermore, although employees must undergo the medical examinations provided for by law, medical professionals do not have the right to inform employers about an employee’s vaccination status.
The only situation in which vaccination could become mandatory is if the government were to decide to make the Covid vaccine compulsory for certain categories of worker – for example, for employees who come into contact with at-risk populations at work on a daily basis (such as those in the healthcare sector), or for at-risk individuals themselves. Previously, there was some discussion in Luxembourg about imposing mandatory vaccination on individuals over 50, and on caregivers, but this currently seems to have been put on hold.
Your contact for more details: employment@arendt.com
(Updated on 29/06/22)
On the one hand, employers have an obligation to provide a safe work environment for their employees (although they cannot impose any form of medical treatment on them). On the other hand, employees can refuse to be vaccinated.
In sectors where the safety of employees and third parties can best be assured through vaccination (the health care sector, for example), when an employee refuses to be vaccinated against Covid-19, the employer may consider changing the employee's tasks in order to protect the health and safety of everyone concerned. However, such a change must not constitute a sanction against the employee. For sectors and/or jobs where it is possible to work from home, employers may, as a precautionary measure, ask their employees to work from home in order to avoid risking contamination in the workplace. Employers must also be sure to implement required safety measures against Covid-19 (if any).
Employers can set up testing or vaccination centres for their employees, but these remain subject to the fundamental principle of each employee’s freedom to participate or not.
Useful links:
Your contact for more details: employment@arendt.com
(Updated on 17/03/22)
Broadly speaking, any sanction imposed upon an employee for their refusal to get vaccinated would, in our view, be seen as direct discrimination based on the employee’s health status and would therefore likely be considered unfair (abusif). Note that Luxembourg law provides for criminal penalties for discrimination based on health status.
The relevant Luxembourg law provisions no longer clearly state that employees cannot be dismissed (or penalised with disciplinary measures) for refusing to be vaccinated or to show a valid certificate under a mandatory CovidCheck regime. Nevertheless, a termination on these grounds would likely be considered null and void for health-based discrimination, except if there were special circumstances justifying it.
Your contact for more details: employment@arendt.com
(Updated on 17/03/22)
Under Luxembourg law, no specific benefits or accommodations must be provided for vaccinated or unvaccinated employees.
Your contact for more details: employment@arendt.com
(Updated on 29/06/22)
In Luxembourg, neither the employer nor other employees can require the vaccination status of a particular employee to be disclosed. Employees are not granted access to the vaccination status of their co-workers, and so do not have the necessary information to refuse to work in the same vicinity as other employees on that basis. Where employees choose to inform their co-workers that they aren’t vaccinated, co-workers will still not have any general right to refuse to work in the same vicinity as them.
Your contact for more details: employment@arendt.com
(Updated on 17/03/22)
Yes, but only if a mandatory CovidCheck regime is in place (i.e. for health care facilities) and the employee fails to show a valid certificate or the ID associated with the certificate. Employees who are not vaccinated but hold a valid certificate because they have either tested negative or have a certificate of recovery cannot be refused access to the workplace.
Your contact for more details: employment@arendt.com
(Updated on 17/03/22)
The law does not provide for any additional paid leave for employees to get vaccinated. As with all medical appointments, if an employee has an appointment to be vaccinated, the employer should authorise this temporary absence wherever possible, while the employee should strive to make such appointments early in the morning or at times likely to cause the least disruption to business operations. The employee can be asked to prove that the absence was indeed due to a medical appointment and provide evidence of this if the employer requests it, by means of a medical certificate.
Your contact for more details: employment@arendt.com
(Updated on 18/02/22)
No. The choice to bear the cost of such tests is at the sole discretion of the employer.
Your contact for more details: employment@arendt.com
(Updated on 18/02/22)
No, this time is not considered as employee working time. However, the time spent by employees to check the certificates of their colleagues or to be checked by their employer is considered as working time (only applicable to health care facilities).
Your contact for more details: employment@arendt.com
(Updated on 17/03/22)
Are there new taxation rules applying to cross-border workers post-pandemic?
Yes. The special bilateral agreements signed between Luxembourg and the Belgian, French and German authorities concerning the taxation rules applying to cross-border workers in the context of the COVID-19 pandemic came to an end on 30 June 2022.
As a consequence, from 1 July 2022, the general rules on the taxation of employment income received by Belgian, French and German cross-border commuters (i.e., employees residing in France, Germany or Belgium and commuting to Luxembourg to perform employment-related activities) apply.
Which taxation rules apply to cross-border employees?
Employment income is taxable in the employee’s country of residence, unless the employment activity is performed in another country. Thus, the employment income of cross-border commuters is, in principle, taxable in Luxembourg and not in their country of residence.
Depending on the employee’s country of residence (Belgium, France or Germany), different thresholds apply below which employment income remains taxable in Luxembourg despite the activities being physically performed elsewhere (whether in the country of residence or in a third country):
Will these allowances be prorated in 2022?
In principle, no. As of the end of the agreements put in place during the pandemic, cross-border commuters should have the full allowance of days for use in the second half of the year (unless all or part of it was already taken in the first half of the year, through days worked outside of Luxembourg for reasons unrelated to (measures taken to combat) the pandemic).
However, there are still differences of interpretation between Luxembourg and the neighbouring countries regarding the reduction or not of the thresholds for employees with part-time contracts and part-year activity (for 2022 and beyond).
What are the tax consequences if the threshold is exceeded?
Where the applicable threshold is exceeded, the employment income received for the days worked outside of Luxembourg becomes subject to taxation in the employee’s country of residence.
French commuters: in principle, the Luxembourg employer must levy French withholding tax on the part of the salary relating to the days worked in France. The specific registration process in France must be followed. The French budget bill 2023 foresees a change in the way French withholding tax would be levied, i.e. via an advance payment: the deduction would be made directly to the employee’s bank account (resident in France) by the French tax authorities.
Belgian and German commuters: if the thresholds are exceeded, any additional taxes should, in principle, be levied via personal tax assessment only.
What are the potential taxation risks for the Luxembourg employers?
The normalisation of widespread teleworking by cross-border commuters may present certain tax risks for Luxembourg employers, such as the risk of creating a permanent establishment or permanent representative in a commuting employee’s country of residence. Depending on the combination of certain factors (e.g., the employee’s profile), this could even cause the employer’s Luxembourg tax residency to be challenged.
Such a risk would materialise in the taxation of all or a portion of the Luxembourg employer’s profits in the cross-border employee’s country of residence. There are also certain tax compliance requirements to consider.
Is there any chance the taxation rules will evolve soon?
The EU Commissioner for Economy, Paolo Gentiloni recently indicated that the EU Commission is working with Member States and stakeholders to find long term solutions for the tax and social security repercussions in cases of cross-border teleworking.
The EU Commission is further in contact with the Organisation for Economic Cooperation and Development (OECD) for possible coordination of the taxation framework applicable to cross-border teleworkers within the EU and between OECD Member countries, which currently are not congruent.
Your contact for more details: EmpCrisis@arendt.com
(10/11/22)
Under the legislation governing the determination of social security for workers linked to two or more EU Member States, employees are generally affiliated with the social security system of the country in which they are employed – except if they carry out a substantial part of their work (i.e. at least 25%) in their country of residence, in which case they must be affiliated with the social security system of their country of residence.
Early on in the Covid-19 pandemic, the Luxembourg authorities negotiated with neighbouring countries (Belgium, France and Germany) and came to the agreement that remote work performed during the pandemic is not to be counted toward the 25% threshold for determining which national social security legislation applies.
These countries recently agreed on a further extension, until 30 June 2022, of the exceptional provision allowing days worked remotely due to the pandemic not to be counted. Theoretically, this would mean that the 25% threshold should apply again as of 1 July 2022.
However, the EU’s Administrative Commission for the Coordination of Social Security Systems has now established a six-month transition period that will run before the threshold is reapplied. Therefore, the 25% threshold will not apply again until after 31 December 2022.
This means that, at least until 31 December 2022, cross-border workers can continue to work from home without the risk of having to switch social security systems if they exceed the 25% threshold provided for in the EU legislation.
Your contact for more details: employment@arendt.com
(Updated on 29/06/22)
While encouraged, remote working is not obligatory and actually requires the consent of both the employee and employer. Generally speaking, employers may request that their employees work from home and/or have them return to the office, while taking into account the tax and social security limits, as applicable to cross-border commuters and subject to any future amendments (see questions 15 and 16 above).
Your contact for more details: employment@arendt.com
(Updated on 29/06/22)
The Grand Ducal regulation of 22 January 2021, published in Mémorial A no. 76 of 2021, declared the new agreement on the legal regime of remote working signed on 20 October 2020 between the social partners to be universally binding (déclaration d'obligation générale).
Our employment team remains at your disposal for any additional information you may require.
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Your contact for more details: employment@arendt.com
(Updated on 18/02/22)
Leave for family reasons in the context of the pandemic is available to employees and self-employed persons with a dependent:
Employees using this leave for family reasons must inform their employer orally or in writing as soon as possible. The start and end dates of the leave must be communicated to the employer. The employee must fill in the request form for leave for family reasons in the context of the COVID-19 pandemic, sign it, and send it to the employer and the National Health Fund (Caisse Nationale de Santé) together with the relevant supporting documents.
Days of leave for family reasons that are taken because a child is in quarantine or isolation, or because the activities of the child’s childcare facility have been suspended, are not deducted from the number of family leave days legally available for sick children based on the child’s age group.
Request form for exceptional leave for family reasons_
Your contact for more details: employment@arendt.com
(Updated on 07/03/22)
The government has provided for sanctions to be imposed on individuals in the event of non-compliance with an isolation measure.
Penalties include fine-bearing warnings (avertissements taxés) of EUR 300 and criminal fines of between EUR 500 and EUR 1,000.
Note that no sanctions appear to have been provided for health care facilities and their employees who do not abide by the Covid-19 rules.
Your contact for more details: employment@arendt.com
(Updated on 29/06/22)
Employers have an obligation to ensure the health and safety of their employees and the security of their workplace. Stakeholders may therefore wonder whether is it permissible to take employees’ temperatures for the purpose of granting or denying access to business premises or to ask employees to fill in health questionnaires or declarations in relation to Covid-19.
Temperature screening
We would like to highlight that this question requires an analysis of the particular facts on a case by case basis. Luxembourg data protection rules and requirements must always be taken into account in so far as the employer will gain access to personal information as a result of the screening (e.g. the employee’s work location, either on-site or from home).
In accordance with the CNPD’s recent recommendations (1), employers should generally refrain from requiring their employees to provide daily body temperature readings.
Nevertheless, it would be permitted to limit temperature tests to manual collection of employees temperature at the entrance of the employer’s premises, without the creation of a central file or further disclosure (as such processing would not be subject to data protection laws). Similarly, the use of thermal cameras is allowed as long as it does not allow the identification of employees, agents or visitors and is not recorded or re-used.
Health questionnaire/declaration
In accordance with the CNPD’s recent recommendations (1), only the competent healthcare professionals may collect, implement and access notes or healthcare questionnaires from employees containing data relating to their state of health or information concerning, in particular, their family, their living conditions or their possible movements. Employers must therefore refrain from collecting information in relation to the vaccination status or possible symptoms of employees, externals or relatives in a systematic and generalized manner or through individual inquiries and requests. In particular, specific health questionnaires or declaration forms shall not be requested to be completed by employers or visitors.
In accordance with the Luxembourg Labor Code, an employee must inform the employer only of his/her incapacity to work, without providing any further information regarding his or her state of health or the nature of the illness. However, in the context of a pandemic, such as Covid-19, employees whose work brings them in contact with other persons (colleagues and the public) should, every time he or she could have exposed these persons to the virus, inform the employer in the event of contamination or suspicion of contamination. It is therefore recommended circulating to the employees a note in order to remember them their obligation to inform the employer if they test positive to Covid-19, if they present symptoms related to Covid-19 or if they have been in close contact with persons which have been tested positive to Covid-19.
Your contacts for more details: Astrid Wagner (astrid.wagner@arendt.com), Faustine Cachera (faustine.cachera@arendt.com) and Pétré Julien (julien.petre@arendt.com)
(11/03/2022)
Access to short-time working is defined in accordance with the legal provisions set out in the Labour Code, Book V, Title 1: "Preventing redundancies and maintaining employment".
More information can be found under the following link:
Your contact for more details: employment@arendt.com
(Updated on 18/02/22)
In the event of quarantine or isolation, employees are required to inform the employer of their absence on the first day of the absence. On the eighth day of the absence at the latest, they must submit an official quarantine or isolation order from the competent national authority in lieu of the certificate of incapacity for work. Employees who meet these requirements are protected against dismissal for a period of no more than 26 weeks from the day on which the incapacity for work arose.
This derogation will be applicable until after 30 June 2022.
Your contact for more details: employment@arendt.com
(Updated on 18/02/22)
In accordance with the CNPD’s recent recommendations (1), it is not the employers’ role to carry out investigations or “contact tracing”. The Health Inspection is in charge thereof from the moment an employee or agent tests positive for Covid-19.
Therefore, although employers should ensure protection and health of employees and visitors in the workplace, contact tracing goes beyond such obligation. In accordance with the principle of data minimization governing processing of personal data under the data protection laws, it is advisable for the employer to use less invasive methods on employees’ or visitors’ privacy than tracing them by collecting location data. This can be done for example by asking the concerned persons to immediately inform the employer should they be tested positive to Covid-19 and/or in the event of suspicion of contamination.
Your contacts for more details: Astrid Wagner (astrid.wagner@arendt.com), Faustine Cachera (faustine.cachera@arendt.com) and Pétré Julien (julien.petre@arendt.com)
(11/03/2022)
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