Managing employees, cross-border workers and human resources
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As with so many businesses, when COVID-19 became a pandemic, you may have had to close temporarily and face a move to remote work wherever possible, maybe abandoning historic operations in the classic office setting from one day to the next. A year later you may be contemplating resuming operations in a new kind of office, and grappling with a myriad of challenges and concerns or have returned to the office, you may have shifted to a new paradigm of office life, you may be looking at balancing remote and physical presence.
 
Our experts are here to assist and guide you through this new, complex framework.
 
 

Your contacts:
- Philippe Schmit
Partner
Employment Law, Pensions & Benefits
- Astrid Wagner
Partner
IP, Communication & Technology

(29/03/21)

The government announced that as of 20th April 2020, masks (or alternative face protections) are mandatory when going outside when the required interpersonal minimum distance of 2 meters cannot be guaranteed. This measure is also applicable in the work environment.

Since 30th October 2020, the wearing of a mask is mandatory for any gathering that involves more than 4 people, in a closed space or in the open air, including in the work environment.

As part of their responsibilities, employers shall take the necessary measures to protect the safety and security of their employees’ health, including occupational risk prevention, information and training activities, and the setting up of an organisation and the necessary means. The employer must ensure that these measures are adapted to correspond to the change in circumstances and aim to improvement of existing situations.

Useful links:

Your contact for more details: EmpCrisis@arendt.com
(29/03/21)

As a general rule, employment income is taxable in the employee’s country of residence, unless the employment is exercised in another country. For cross-border commuters (i.e. employees residing in France, Germany or Belgium and commuting to Luxembourg to carry out employment-related activities), this means that their employment income is taxable in Luxembourg (and not in their country of residence). Depending on the employee’s country of residence (France, Germany or Belgium), different tax thresholds will apply under which income from employment should remain taxable in Luxembourg despite activities being physically exercised elsewhere (either in the employee’s country of residence or in any third country).

Thus, taxation in the employee’s country of residence should not occur where the number of days worked outside of Luxembourg does not exceed:

  • 29 days per year for France
  • 19 days per year for Germany
  • 24 days per year for Belgium.

Under four mutual agreements between the competent authorities in Luxembourg and France (dated 16 July 2020, 27 August 2020, 7 December 2020 and 10 March 2021) concerning cross-border workers in the context of the COVID-19 pandemic, the 29-day rule applicable to French residents working from home shall not apply to the period 14 March 2020 to 30 June 2021.

In a separate mutual agreement dated 16 July 2020 concerning the detailed rules of application of point 3 of the protocol to the tax treaty between France and Luxembourg, those authorities also stated that social security payments by the respective countries shall be taxable only in the jurisdiction from which they originate (by application of Article 17 para. 2 of the tax treaty).

Furthermore, on the basis of the mutual agreement signed on 7 December 2020, salaries, wages and other similar remuneration which an individual resident in France receives for services rendered to the Luxembourg national government, its local authorities or public bodies in respect of days worked at home in the context of the COVID-19 pandemic, shall remain taxable in Luxembourg  (pursuant to Article 18 para. 1 a) of the tax treaty), if that individual is a French national who does not have Luxembourgish nationality. If a taxpayer wishes to apply this mutual agreement, then they undertake to apply it consistently in both contracting states, and to keep at the disposal of the administration a certificate from their employer indicating the number of days worked at their home (solely on the basis of the government health instructions) for which they received the above-mentioned income, as well as the related tax assessment notice.

For German cross-border commuters, on the basis of two consultation agreements signed on 3 April 2020 and 7 October 2020 between Germany and Luxembourg (the “Consultation Agreements”) followed by a circular letter issued on 21 October 2020, days teleworked from Germany due to the impact of COVID-19 that would otherwise have been spent in Luxembourg can receive the same tax treatment as days worked in Luxembourg. This means that the days on which employees resident in Germany telework from home may not need to be counted toward the 19-day limit. In particular, the following aspects of the Consultation Agreement should be noted:

  • Employed persons wishing to use the above-mentioned fictitious treatment (i.e. fictitious allocation of teleworking days to Luxembourg while the COVID-19 situation persists) are required to maintain appropriate documentation. In addition, the employment income allocated to Luxembourg must actually be taxed in Luxembourg, meaning that it must be included in the tax base for determining the employee’s Luxembourg tax liability. Finally, the employee shall be viewed as having consented to the taxation of this employment income in Luxembourg.

  • Such fictitious treatment cannot be used where, irrespective of COVID-19, home working days would have been spent in Germany or any country other than Luxembourg (e.g. where an employee already conducts their activities in Germany/from their home office as per the terms of their contract).

  • The fictitious treatment also applies in identical terms to salaries, wages and other similar remuneration for government services (other than pensions) covered by Article 18 para. 1 of the double tax treaty between Germany and Luxembourg.

  • Germany and Luxembourg have agreed that payments made pursuant to the rules governing short-time work in Germany (Kurzarbeitergeld) and in Luxembourg (chômage partiel) qualify as social security payments by the respective country within the meaning of Article 17 para. 2 of the double tax treaty between Germany and Luxembourg.

  • The Consultation Agreements are applicable with respect to working days between 11 March 2020 and 31 December 2020. The period of application beyond 31 December 2020 is extended automatically to the following month if neither Germany nor Luxembourg terminate it, respecting a notice period of one week before the end of each month.

For Belgian cross-border commuters, on the basis of agreements signed on 19 May 2020, 24 August 2020, 7 December 2020 and 12 March 2021 between Belgium and Luxembourg, days teleworked from Belgium due to the impact of COVID-19 that would otherwise have been spent in Luxembourg can receive the same tax treatment as days worked in Luxembourg. This means that the days on which employees resident in Belgium telework from home may not need to be counted toward the 24-day limit. Such fictitious treatment cannot be used where, irrespective of COVID-19, home working days would have been spent in Belgium or any country other than Luxembourg. Cross-border workers who make use of this fictitious treatment are required to apply it consistently in both contracting states and to maintain appropriate documentation. In addition, the employment income allocated to Luxembourg must actually be taxed in Luxembourg, meaning that it must be included in the tax base for determining the employee’s Luxembourg tax liability. The agreement is applicable with respect to working days between 11 March 2020 and 30 June 2021.

Your contact for more details: EmpCrisis@arendt.com
(18/03/21)

According to the determination of the social security legislation applicable in the context of an occupation on the territory of two or more European Member States, employees are, in general, affiliated with the social security of the country where 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 this scenario, they must be affiliated with the social security system of their country of residence.

The Luxembourg authorities have negotiated with their counterparts from neighbouring countries regarding the determination of the social security legislation applicable in the context of an occupation on the territory of two or more Member States. It has been agreed that remote-work performed during the Covid-19 crisis shall not be taken into account for the above 25% threshold for determining the applicable legislation.

On 14 December 2020, Luxembourg and its neighbouring countries, Germany, France and Belgium, have agreed to further extend the exceptional provision not to take into account teleworking days linked to the COVID-19 pandemic for the determination of social security legislation applicable to cross-border commuters until 30 June 2021.

Your contact for more details: EmpCrisis@arendt.com
(29/03/21)

  • Since 11th March 2020, the 19-day taxation threshold applicable to German residents working from home has been suspended. Germany and Luxembourg initially agreed that this suspension was applicable until 31st December 2020. After this date, if the Consultation Agreement is not terminated by either Germany or Luxembourg with a one week notice period before the end of the month, the suspension is automatically extended.

 

  • Following negotiations between the Luxembourg authorities and their neighbouring counterparts, it has been decided that remote-work performed during the Covid-19 crisis shall not be taken into account for the 25% threshold for determining the applicable social security legislation until 30th June 2021.

 

  • Our dedicated tax and employment law teams remain available to address your specific questions as a case-by-case analysis is in all circumstances recommended for cross-border constellations and in particular as the ever-evolving Covid-19 situation continues to add complexity.

 

Your contact for more details: EmpCrisis@arendt.com
(29/03/21)

  • Since 14th March 2020, the presence of an employee at home for performing his/her employment activities, may not be taken into account in the calculation of the 29 days’ taxation threshold. France and Luxembourg recently agreed that this suspension will be applicable until 30th June 2021.

 

  • Following negotiations between the Luxembourg authorities and their neighbouring counterparts, it has been decided that remote-work performed during the Covid-19 crisis shall not be taken into account for the 25% threshold for determining the applicable social security legislation until 30th June 2021.

 

  • Our dedicated tax and employment law teams remain available to address your specific questions as a case-by-case analysis is in all circumstances recommended for cross-border constellations and in particular as the ever-evolving Covid-19 situation continues to add complexity.

Your contact for more details: EmpCrisis@arendt.com
(29/03/21)

  • Since 14th March 2020, no day is to be counted under the 24-day taxation threshold applicable with respect to Belgium for Belgian residents working from home. Following an agreement between Belgium and Luxembourg, this measure will be effective until 30th June 2021.

 

  • Following negotiations between the Luxembourg authorities and their neighbouring counterparts, it has been decided that remote-work performed during the Covid-19 crisis shall not be taken into account for the 25% threshold for determining the applicable social security legislation until 30th June 2021.

 

  • Our dedicated tax and employment law teams remain available to address your specific questions as a case-by-case analysis is in all circumstances recommended for cross-border constellations and in particular as the ever-evolving Covid-19 situation continues to add complexity.

Your contact for more details: EmpCrisis@arendt.com
(29/03/21)

Current government guidelines state that people should continue to work from home if they are in a position to do so. However, while encouraged, howe working is not obligatory, and employers may in general request their employees to work from or return to the office (exceptions, procedures and situations to be analysed on a case by case basis).

Your contact for more details: EmpCrisis@arendt.com
(29/03/21)

Declaration of general obligation of the agreement dated 20 October 2020 on the legal regime of teleworking

The Grand-Ducal regulation of 22 January 2021, published in the Mémorial A n° 76 de 2021, declared the new agreement on the legal regime of teleworking signed on 20 October 2020 between the social partners to be obligatory.

The Grand-Ducal regulation specifies that the declaration of general obligation shall take effect on the date of entry into force of the new agreement on the legal regime of teleworking.

Our employment team remains at your entire disposal for all additional information.

Version française ici_ | Deutsche Fassung hier_

Your contact for more details: EmpCrisis@arendt.com
(01/02/21)

As from 21st January 2021, employees and self-employed persons are entitled to an exceptional leave for family reasons for children who are:

  • less than 13 years of age under a quarantine or isolation measure decided or recommended by the Health Directorate. (The age limit of less than 13 years of age does not apply to children receiving the special supplementary allowance.)
  • between 13 and 18 years of age and hospitalised under a quarantine or isolation measure decided or recommended by the Health Directorate.
  • vulnerable to COVID-19 pursuant to the recommendations of the Higher Council for Infectious Diseases (Conseil Supérieur des Maladies Infectieuses – CSMI). The parent must be able to produce a medical certificate attesting to this vulnerability and the contraindication of attending school or a child care facility.
  • born before 1 September 2017 and under 13 years of age or who has not left the basic education system and who cannot attend school following a decision to close, whether partially or completely, the school or education and care facility for children. The parent must be able to produce a certificate attesting to the given situation issued by the competent public authority.
  • born after 1 September 2016 and who cannot attend a child care facility, provided that it cares for young children, following a decision to close it down. The parent must be able to produce a certificate attesting to the given situation issued by the competent public authority.

Form to request exceptional leave for family reasons_

Your contact for more details: EmpCrisis@arendt.com
(29/03/21)

The law of 20 June 2020 prolonged the paid family support leave that has been introduced during the emergency state. This leave aims at supporting employees and self-employed persons who are not in position to work anymore because they need to care of disabled or elderly persons after the closing of their specific care structures due to the Covid-19 pandemic. Concerned employees are protected against dismissal during family support leave. This paid family support leave will be available until 25th November 2021.

The specific form below must be completed and sent to the Ministry of Family along with the necessary supporting documents.

New Certificate requesting family support leave_

Your contact for more details: EmpCrisis@arendt.com
(08/06/21)

The government has imposed sanctions in the event of non-compliance with social distancing measures such as limitation of gatherings and the obligation to wear a mask (or alternative face protection) – notably fines ranging from EUR 25.- to EUR 500.- . For companies receiving public, cultural and/or sportive activities, non-compliance with the implementation of specific measures to fight Covid-19 is punished by an administrative fine of EUR 4.000.- increasing to EUR 8.000.- in case of recurrence. In addition, companies may be closed administratively until 31st December 2020.

Your contact for more details: EmpCrisis@arendt.com
(02/10/20)

Various measures have been implemented in Luxembourg to support businesses during this difficult period. Among such measures is the possibility for companies, under certain conditions, to resort to short-time working schemes (chômage partiel) depending on the nature of the difficulties encountered and under certain conditions to protect employment and prevent dismissals for economic reasons.

There is a specific short-time working scheme in case of force majeure, that can be applied to employees who are not covered by a medical certificate of incapacity for work and who can no longer be employed at all or can no longer be employed on a full-time basis, when the company cannot ensure the continuation of its normal economic activity, for reasons related to the Coronavirus, or if there is a significant drop in demand from customers or users due to the Coronavirus. It applies in principle to all economic sectors where the causes of economic difficulties are directly related to the Coronavirus.

If the Employment Fund (Fonds pour l’emploi) accepts an employer’s request to benefit from a short-time working scheme, 80 % of the salaries normally received by the employees (capped at 250 % of the minimum wage for an unskilled worker) during the non-work periods with a maximum of 1.022 hours per employee and per year will be covered. In order to apply for the scheme, an online application must be introduced.

The government confirmed that partial unemployment will be maintained until 31st December 2020 and that no employee will receive less than the social minimum wage during partial unemployment.

In addition, after the end of the emergency state on 24 June 2020, companies can continue to apply for short-time work but with new terms and conditions. Four options (described under point 13 below) to apply for short-time work are accessible to companies.

Useful links:

Your contact for more details: EmpCrisis@arendt.com
(02/10/20)

  • During the emergency state, two different procedures were available for companies:


a) a fast-track procedure for companies directly impacted by a government decision

b) a "force majeure / coronavirus" partial unemployment scheme

 

For both of the abovementioned procedures, in the event of an agreement by the authorities, the Employment Fund (Fonds pour l’emploi) covers 80% of the salaries normally received by the employees (which is capped at 250% of the minimum wage for an unskilled worker (i.e. EUR 5,345.98 gross (EUR 2,141.99 x 2.5)) during the non-work periods with a maximum of 1.022 non-working hours per employee and per year (pro-rated for part-time employees).

An agreement between the Government and the presidents of the OGBL and LCGB trade unions, approved by the Government Council, provides that in case of partial unemployment, the compensation allowance (which in principle corresponds to 80% of the normal reference wage capped at 250% of the social minimum wage for unskilled employees) cannot be less than the amount of the social minimum wage for unskilled employees. Any difference between the amount of the compensation indemnity and the minimum social minimum wage for unskilled workers will be borne by the Employment Fund (Fonds pour l’emploi).

The government confirmed that partial unemployment will be maintained until 31st December 2020 and that no employee will receive less than the social minimum wage during partial unemployment.

 

  • With the end of the state of emergency on 24 June 2020, the emergency measures put in place to assist companies through a special "force majeure COVID-19" short-time working mechanism expired.

The Social Partners and the Government recognised that certain sectors have been more severely affected by the health crisis, it has therefore been agreed to continue to support Luxembourg companies with four new options:

 

  1. Industrial companies will continue to benefit from the short-time working scheme in order to be able to react to disruptions on international markets. In applying the short-time working scheme, industrial firms undertake not to make staff redundant for economic reasons.

  2. Companies in the HORECA sector will benefit from accelerated access to partial unemployment from structural sources, with no limit on the number of employees entitled to it. In case of proven need, these companies will have the right to proceed with economic redundancies up to a maximum limit of 25% of the workforce until 31 December 2020. If the situation improves, companies that have made redundancies must, in the event of subsequent recruitment of staff, give priority to re-employing their former employees who have been made redundant.

  3. Firms affected by the health crisis, other than industrial firms and those in vulnerable sectors, will also be able to have recourse to short-time working from a structural source through the accelerated procedure, provided that they do not make redundancies. In this case, however, the number of employees covered by short-time working may not exceed 25% of the workforce for the months of July and August, 20% for the months of September and October and 15% for the months of November and December.

  4. Finally, applications from companies in vulnerable sectors making more than 25% of their workforce redundant, as well as those from all other companies proceeding to redundancies, will be required to submit a so-called "traditional" short-time working application which can be granted only if the companies draw up restructuring plans. These plans will be drawn up in the form of a recovery plan in the case of small firms with less than 15 employees.

 

The government confirmed that partial unemployment under the current conditions will be maintained until 30th June 2021.

Online applications covering these new short-time work options must be introduced on MyGuichet.

Your contact for more details: EmpCrisis@arendt.com
(29/03/21)

On 29th October 2020, the maximum working time authorised under article L.211-12 was extended to 12 hours during the crisis situation, notably to ensure sufficient workforce in the healthcare sector.

This derogation came to an end on 31st December 2020, therefore, the normal maximum working time (i.e. 10 hours per day, 48 hours per week) is applicable.

Your contact for more details: EmpCrisis@arendt.com
(29/03/21)

As from 21st December 2020, a law temporarily derogating from Article L. 121-6 of the Labour Code entered into force. In case of quarantine or isolation employees are obliged on the first day of absence to inform the employer of their absence, additionally, at the latest on the 8th day of their absence, they must submit an official quarantine or isolation order from the competent national authority as a certificate of incapacity for work. Employees who followed this prescription are protected against dismissal for a period of no more than 26 weeks from the day on which the incapacity for work arises.

This derogation will be applicable until 30th June 2021 included.

Your contact for more details: EmpCrisis@arendt.com
(29/03/21)

As a rule, temperature screening should not be an employer’s only response to the COVID-19 outbreak and employees should be encouraged to work from home to the maximum extent possible. Nevertheless, in view of the latest communications from the Luxembourg government and the planned phasing-in of an end to quarantine, employees will progressively be returning to the workplace.

As employers have an obligation to ensure the health and safety of their employees and the security of their workplace, stakeholders may wonder whether is it permissible to take employees’ temperatures for the purpose of granting or denying access to business premises.

We would like to highlight that this question requires an analysis of the particular facts of each situation. 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), merely reading body temperature taking at the entrance of a site does not qualify as an instance of processing personal data, as long as this reading does not entail, or is not linked to any additional record or processing of personal data.

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 linked to any recording or re-using of the images.

However, the CNPD considers that this would be different if the employer (i) creates a file containing all the monitored temperatures as well as identification data of the monitored persons, or (ii) could consult the images recorded by the thermal cameras and identify the data subjects. This would indeed be a disproportionate processing of data, which would not comply with the principle of data minimization, insofar as the employer could have implemented less invasive means to protect the employees’ and visitors’ privacy.

Those recommendations follow the French and Belgian data protection authorities’ guidelines (2)(3).

Your contacts for more details: Astrid Wagner (astrid.wagner@arendt.com) and Faustine Cachera (faustine.cachera@arendt.com)
(24/06/20)

Useful links:

(1) CNPD: Coronavirus (covid-19): recommandations de la CNPD relatives à la collecte de données personnelles dans un contexte de crise sanitaire

(2) COVID-19 et le traitement de données à caractère personnel sur le lieu de travail.

(3) Coronavirus (COVID-19) : les rappels de la CNIL sur la collecte de données personnelles par les employeurs