Two new laws modifying the Luxembourg Labour Code (Code du Travail) with regard to the special leave and flexible working arrangements that are available to employees will soon come into effect. Bills of law n°8016_ and n°8017_ were exempted from a second constitutional vote by the Conseil d’État (State Council) on 14 July 2023 and will be published in the Luxembourg Official Journal shortly. They implement Directive (EU) 2019/1158 on work-life balance for parents and carers. [1]
As summarised below, the new laws create new rights for employees together with new obligations for employers, in addition to amending certain existing provisions to make them clearer.
1. New types of special leave
Two new special leave entitlements are introduced into the Labour Code.
Employees must meet certain criteria in order to make use of these leave entitlements. Furthermore, they must inform their employer or a representative of the employer of their absence either in person or through a third party, orally or in writing and, at the latest, on the day of the absence.
During these two forms of special leave, up to 50% of the salary paid by the employer will be paid by the State, up to a limit of five times the social minimum wage for unskilled workers (i.e. EUR 12,541.20, index 921.40). If the employee works part-time, this limit is adjusted proportionally in accordance with their working hours.
Civil servants are also entitled to benefit from this leave.
2. Leave for the birth of a child
Special leave for the birth of a child (also referred to as “paternity leave”) is extended to include those who are recognised as an “equivalent second parent”.
The purpose of this is to enable same-sex couples to benefit from the 10-day leave (divisible into 80 units of one hour) in the event of the birth of a child (excluding adoption processes). For employees who work less than 40 hours per week, work part-time or have several employers, their number of hours of leave is set pro rata on the basis of the working week in the relevant collective work agreement or employment contract.
The leave must be taken in the two months following the birth of the child. [2]
Under the new law, parents are also entitled to additional days of leave in the event of the birth of multiple children. For example, the father of twins will be entitled to 20 days of leave for the birth of the children.
The employee must give the employer two months’ notice of the dates for which the employee expects to take leave. However, it is specified that as of now, the notice period will not apply if the birth takes place earlier than two months before the expected due date. The law also specifies that if notice is not given within the required period, the leave may only be taken once and immediately after the birth of the child, unless the employer and the employee have agreed on a flexible solution that allows the employee to take leave either in full or in part at a later date (taking into consideration as far as possible the needs of the employee and the employer).
This leave is paid for by the State from the 17th hour of leave, up to a limit of five times the social minimum wage for unskilled workers. If the employee works part-time, this limit is adjusted proportionally in accordance with their working hours.
This leave is available to those who are self-employed and to civil servants.
3. Flexible working arrangements
The concept of “flexible working arrangements” is now part of the Labour Code. It refers to the opportunity for an employee to adjust their working pattern through flexitime, a reduction in work hours or remote working, over a set period that cannot exceed one year.
The employee must meet certain eligibility criteria for this:
Provide evidence of continued employment with the same employer for at least six months; and
Be the parent of a child under 9 years old; or
Provide personal care or support to a relative, or to a person who lives in the same household, and who is in need of significant care or support for a serious medical reason that has been confirmed by a doctor.
There will also be certain obligations on the employer, who must, inter alia, consider the request and respond within one month. Any refusal or postponement of leave must be justified in writing and sent by registered letter with acknowledgement of receipt.
The employee may request to return to their original working pattern before the end of the agreed period when this is justified by a change in circumstances. The employer must respond to the employee’s request within one month, taking into account both their own and the employee’s needs.
4. Penalties
An employer who refuses to allow an employee special leave to which they are legally entitled risks incurring a fine ranging from EUR 251 to EUR 5,000 (the maximum amount is doubled for legal persons).
Compensation paid incorrectly by the State as reimbursement for special leave due to false or incorrect declarations must be repaid.
An employer who does not comply with their obligations regarding an employee’s request for flexible working arrangements risks incurring a fine ranging from EUR 251 to EUR 2,500 (the maximum amount is doubled for legal persons). The employer risks the fine being doubled in the event of a repeat breach within two years.
5. Prohibition of reprisals
Employees who have requested special leave or benefit(ed) from flexible working arrangements must not be subject to reprisals or less favourable treatment because they made a request to access one of these rights or benefited from one of the rights. Any termination of the employment contract by the employer because the employee requested special leave or flexible working arrangements will be null and void. Employees subject to this treatment will be able to access an expedited procedure through the employment courts to litigate their rights.
For the duration of special leave and over the entire agreed period of the flexible working arrangements, the employer must also keep the employee’s job available to them or, if this is not possible, guarantee a similar role corresponding to the employee’s qualifications and with a salary that is at least equivalent.
The laws will enter into force four days after publication in the Luxembourg Official Journal.
Author: Raphaëlle Carpentier
[1] Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU.
[2] These new rules on the deadline for taking leave also apply to leave for the adoption of a child.