On 25 June 2020 the Law of 20 June 2020 was published in Memorial A 538, introducing:
- a temporary exemption to certain employment law provisions relating to the state of crisis caused by COVID-19; and
- modifications to the Labour Code.
The law takes over from the grand ducal regulations that implemented certain employment law exemptions based on Article 32(4) of the Constitution, which became obsolete(1) at the end of the state of crisis.(2)
This article highlights what employers need to know about the new law.
The law states that the short-time working hours used between 1 January 2020 and 31 July 2020 are not allocated to the 1,022-hour maximum reduction in the working hours per calendar year per full-time employee, as an exemption to Article L 511-5 of the Labour Code. For part-time employees, the 1,022 hours are calculated on a pro-rata basis.
The law further states that:
- debt declarations must be countersigned by the staff delegation, if any,(3) for all applications relating to the period corresponding to the state of crisis, extended to the end of the last month of the state of crisis (ie, until 30 June 2020 inclusive); and
- the deadline for submitting debt declarations(4) has been extended from two months to three months after the month in which the short-time working occurred for all applications relating to the period corresponding to the state of crisis (ie, until 24 June 2020 inclusive).
The penalties introduced during the state of crisis for instances in which subsidies were granted on the basis of false declarations, there was a deliberate failure to pay allowances to employees or these allowances were misappropriated(5) have been permanently incorporated into the modified Article L 511-14 of the Labour Code. The penalties include:
- immediate withdrawal of the short-time working benefit from the company concerned;
- reimbursement of all sums collected on the basis of all applications submitted; and
- a fine of between €251 and €5,000, increasing to €10,000 for legal persons, in accordance with Book I of the Criminal Code.
The Labour Code(6) now extends the direct right of the Agency for the Development of Employment (ADEM) and the minister responsible for employment to access certain data held by the Joint Social Security Centre, to ensure effective monitoring of short-time working.(7)
The law now specifies that if an employee could not work due to sickness or an accident during the state of crisis, as an exemption to Article L 121-6(3) of the Labour Code, the 26-week period during which employees are protected against dismissal was suspended for the duration of their incapacity to work during the state of crisis.
This protection period resumed on 25 June 2020 if the employee still could not work at that time.
Further, as of the first day of the 27th week of protection against dismissal, employers that have been duly informed of an employee's illness or possess a medical certificate in accordance with Article L 121-6, Paragraphs 1 and 2 of the Labour Code can dismiss the employee only for serious reasons.
For companies directly affected by the government's closure decisions and companies permitted to use short-time working in the event of force majeure due to COVID-19, the trial periods suspended in accordance with the special provisions introduced during the state of crisis(8) resumed on 25 June 2020.
Fixed-term contracts for students
The law states that fixed-term contracts entered into during the state of crisis between a student and an employer working in one or more of the economic areas listed in the law's appendix, which could provide for working hours in excess of 15 hours per week on average over one month or four weeks:(9)
- end on the initially agreed expiry date, unless terminated early by mutual agreement; and
- cannot be renewed after 24 June 2020 (ie, the end of the state of crisis).
The law confirms the removal of the deadlines imposed during the state of crisis for occupational doctors to:
- return their reports to the joint commission after they have been approached by the Medical Control Service; and
- inform the Medical Control Service and the joint commission of an employee's failure to attend an appointment when asked to do so without valid reasons.
If, during this same period, the employee does not respond to the occupational doctor's appointment invitation, the case is suspended and they will be re-invited to another appointment as soon as possible.(10)
The law also stipulates that bonuses, extras and incidentals due to be paid to employees undergoing a professional reclassification process who, during the state of crisis, were responsible for the smooth running, maintenance or supply of activities in the sectors defined in the law's annex:(11)
- are not taken into account to calculate the new pensionable monthly income; and
- should be defined as due under the COVID-19 pandemic state of crisis.
The law confirms that during the state of crisis:(12)
- for employment support contracts and employment initiation contracts, the Employment Fund reimburses employers 100% of the remuneration paid to young jobseekers as soon as possible; and
- for employment reintegration contracts, employers need not reimburse the Employment Fund a proportion corresponding to 50% of the minimum social wage for unqualified workers.
The suspension during the state of crisis of the automatic termination of rights to the early retirement allowance of an employee who has taken early retirement but resumes working for a company listed in the law's annex(13) has been extended until 31 December 2020.
The deadlines applicable when negotiating a social plan, which were suspended in accordance with the specific provisions implemented during the state of crisis,(14) resumed on 25 June 2020.
During the state of crisis (ie, until 24 June 2020 inclusive), the period available to the ADEM to propose candidates to employers was increased from three weeks to six weeks.
The law specifies that for jobseekers remunerated during the state of crisis, the following deadlines are extended by the duration of the state of crisis:
- the duration of the original or extended rights to unemployment benefits; and
- the 24-month reference period stipulated in Article L 521-11 of the Labour Code.
Endnotes
(1) Article 32(4), Paragraph 4 of the Constitution states that "[a]ll the regulations adopted by virtue of this provision will cease to apply at the end of the state of emergency at the latest". According to the parliamentary work relating to the law, the grand ducal regulations adopted based on Article 32, Paragraph 4 of the Constitution become null and void at the end of the state of crisis.
(2) The state of crisis started on 18 March 2020 and ended at midnight on 24 June 2020.
(3) Further information is available here.
(4) Further information is available here.
(5) Further information is available here.
(6) Article L 621-3 of the Labour Code, modified by the Law of 20 June 2020.
(7) Further information is available here.
(8) Further information is available here.
(9) Further information is available here.
(10) Further information is available here.
(11) Further information is available here.
(12) Further information is available here.
(13) Further information is available here.
(14) Further information is available here.
