An employee may exercise a right of withdrawal from the workplace in case of serious, immediate and unavoidable danger
Security measures, taking of leave, business travel, family leave... as lockdown eases in Luxembourg and workers return to the office, questions about the rights of both employers and employees are legion. Ariane Claverie, lawyer and partner, and Eloïse Hullar, lawyer, of Castegnaro Ius Laboris Luxembourg explain.
1) Can the employer oblige his employees to return to the office?
In the case of an employee who has had to stop working because the firm no longer has sufficient work for him (the employee being placed on short-time working, for example), the employer is of course entitled to require the employee to return to work as soon as the activity of the firm makes such a return necessary. The employee will have to adhere to such a request, except in cases of authorised absence (incapacity for work, leave for family reasons, or other).
If an employee had to telework for a certain period of time, the employer who wishes to see him/her return to work can impose this on him/her, insofar as it is only a question of the application of the employment contract, but the employer should take into account any clause relating to the duration of telework provided for in the telework contract, if the parties have signed one.
If health conditions are adequate at the workplace, and depending on the circumstances, employees who refuse to return to the workplace could be subject to disciplinary action.
2) What are the employer’s health and safety obligations for returning to the office?
Beyond the employer’s usual obligations, a series of specific obligations are imposed in terms of protecting the health and safety of employees in the specific context of the covid-19 pandemic. Therefore, employers will have to, among other things:
- avoid risks and assess any risk to the safety and health of employees that cannot be avoided in relation to these exceptional circumstances related to the covid-19 epidemic;
- inform and train employees, in collaboration with the staff delegation, on possible risks to safety and health, the precautions to be taken, the wearing and use of protective equipment and clothing, and hygiene requirements;
- arrange the workstations and other premises or workplaces in which employees are likely to carry out their occupational activity in accordance with these exceptional circumstances;
- provide employees with personal protective equipment, including appropriate protective clothing, appropriate to the exceptional circumstances related to the covid-19 epidemic;
- provide employees with appropriate sanitary facilities, access to water, soap and disposable paper towels or hand sanitiser;
- ensure that employees maintain an appropriate physical distance from each other and, failing this, that employees wear a mask or other device to cover a person's nose and mouth and, if necessary, other personal protective equipment;
- ensure that the premises and floors are cleaned regularly;
- ensure that work surfaces are cleaned and disinfected.
In addition, employers shall take appropriate measures to ensure that employees and visitors receive adequate information concerning the above points.
If employees of several companies are in the same place, employers must cooperate in the implementation of the above-mentioned provisions relating to safety and health at work and coordinate their activities with a view to the protection and prevention of occupational risks.
The measures concerning safety and health at work referred to above must under no circumstances entail financial burdens for employees.
3) Can the employee exercise a right not to return to the workplace, and if so, under what conditions?
An employee may exercise a right of withdrawal in case of serious, immediate and unavoidable danger (article L. 312-4 (4) of the Labour Code). Thus, it will be necessary to check whether the situation in which the employee finds himself actually meets these criteria. For example, the employee's mere fear of being contaminated cannot, in our view, justify such a right of withdrawal.
However, because of the current situation, it has been specified by a Grand-Ducal regulation that, during the state of crisis:
- the employee must immediately report, to the employer and/or to the designated employees and to the safety and health delegates, any work situation which he has reasonable grounds to believe presents a serious and immediate danger to safety and health in the context of the covid-19 epidemic;
- an employee who, in the event of a serious, immediate and unavoidable danger, moves away from his or her workstation or from a danger zone, shall not be prejudiced in any way. Termination of an employment contract by an employer in violation of these provisions is abusive.
In this context, employees should, before exercising their “right to withdraw”, immediately report to the employer and/or designated employees and safety and health delegates any work situation which they have reason to believe presents a serious and immediate danger to safety and health in the context of the covid-19 epidemic, thus enabling the employer to take appropriate measures and arrangements if necessary.
4) Can an employer force an employee to travel on business?
Business travel may be undertaken, provided that the employer complies with the recommendations of the competent national authorities. However, it is recommended that business trips should only be imposed in cases of strict necessity.
If an employer were to require an employee to travel to an area particularly affected by the pandemic, despite the recommendations of local authorities, the employer could be considered to be in breach of his legal health and safety obligations and could be held liable.
It should be noted in this respect that the employee may exercise his “right of withdrawal”, if the planned business trip places him in a case of serious, immediate and unavoidable danger.
5) Can the employer be held liable if an employee contracts covid-19 after returning to work?
First of all, it should be noted that, according to the Accident Insurance Association, the employee must consult his attending physician in order to complete a medical declaration of an occupational disease. If the employee works as nursing staff or is particularly exposed to similar risks of contagion due to his professional activity, there is a presumption in his favour.
If the employee is not particularly exposed to similar risks of contagion because of his professional activity, it is up to him to prove that he has contracted covid-19 at his workplace.
“Theoretically, the employer could be held criminally liable if it is held that the employee's illness was the result of a lack of foresight or precaution on the part of the employer, without any intention of harming the employee's person,” said Ariane Claverie.
Moreover, even in the case of an occupational disease, the employer’s civil liability might not be engaged. Indeed, employees cannot, because of the occupational disease, bring a legal action for damages against their employer, unless a criminal judgment has found the defendants guilty of intentionally causing the occupational disease. In the latter case, employees may act only for the amount of damages which is not covered by insurance.
Theoretically, the employer's criminal liability could be sought if it was held that the employee’s illness was the result of a lack of foresight or precaution on the part of the employer, without any intention to harm the employee. More specifically, in the event of failure to comply with the protective measures imposed by the Grand-Ducal Regulation of 17 April 2020, the employer could be subject to a prison sentence of 8 days to 6 months, and/or a fine of €251 to €25,000 (up to €50,000 euros for legal entities).
6) Can the employee apply for family leave after 25 May?
On 5 May, the government announced that the right to extraordinary leave for family reasons will in principle end with the resumption of primary education and childcare facilities scheduled for 25 May.
However, it was specified that the extraordinary leave for family reasons may be extended in the following cases:
- for the care of a vulnerable child;
- if there are no places available;
- for children under the age of 3, parents will have the choice of either taking a leave for family reasons or enrolling them in a childcare facility.
Accordingly, the government submitted a bill amending the labour code on 11 May 2020 concerning the system of family leave. This bill proposes to broaden the legal scope of family leave to cover cases that are not due to a child's illness, but to measures to organise the structures needed to combat the spread of covid-19. The text also includes among the cases of illness of the child the child’s medical vulnerability.
7) How long can an employer continue partial unemployment?
Companies may continue to benefit from short-time working due to “force majeure” linked to covid-19 as long as they suffer a negative impact of covid-19 on their business and subject to the prior compulsory agreement of the economic conditions committee. As a reminder, companies must make a request each month with a supporting document which must be signed by the employer.
In addition, companies that have had to cease all or part of their activities following a government decision remain, exceptionally, directly eligible for partial unemployment, from the effective date of the government decision causing their total or partial closure.
However, enterprises initially affected by a government decision, and which are now authorised to carry on their activity, fall under the “traditional partial unemployment scheme” and will therefore have to obtain the prior agreement of the economic affairs committee.
However, it seems that, according to information given by Luxembourg job centre Adem by telephone, companies which had to cease their activities by government decision and which were able to resume them as from 11 May 2020 remain eligible for short-time working for the whole month of May 2020.
8) Between now and the end of the year, can the employer impose holiday dates on its employees?
According to article L. 233-10 of the Labour Code, “leave is set in principle according to the employee’s wishes, unless the needs of the service and the justified wishes of other employees of the company oppose it.” Thus, the employer may not in principle impose leave on an employee, whether for economic, or even organisational reasons, or for any other reason.
The employer may, however, within the framework of his internal organisation, encourage employees to take leave. Therefore, it should be recalled that, in accordance with the requirements arising from European Union law, the employer has an obligation to ensure that the employee is actually able to exercise his right to paid annual leave.
This is done in particular by providing ‘adequate information’ consisting in encouraging the employee, if necessary formally, to take paid annual leave, while informing him in a precise and timely manner that if he does not take his leave, it will be lost at the end of the reference period or of an authorised carry-over period.
Finally, it will be necessary to comply with the dates fixed in the framework of collective leaves provided for by mutual agreement between the employer and the staff delegation or, failing that, the employees.
“In principle, as the leaves are fixed by mutual agreement between the parties, it would only be possible to return to them by mutual agreement,” said Ariane Claverie.
9) On the other hand, can the employee ask to cancel leave that has already been granted?
In principle, since leave is fixed by mutual agreement between the parties, it would only be possible to amend it by mutual agreement. Consequently, an employee may not, in principle, unilaterally cancel leave which he has already been granted, unless he could rely on a practice to that effect within the company.
10) In the same way as teleworking, does a return to the office require an amendment to the employee’s contract of employment?
The employee’s return to work does not, in principle, require the conclusion of an amendment to the employment contract, in so far as it concerns only the application of the employment contract, but it will be necessary for the employer to take account of any clause relating to the duration of teleworking provided for in the teleworking amendment, if the parties have signed one.