Paid leave can be carried over indefinitely in some businesses, but the basic rule is that it has to be taken before the end of the year. Photo: Shutterstock
Carry-over from one year to the next, compensation, cancellation…Here is an update on what you can and cannot do with your annual leave.
You have not yet taken all of your holidays, and the end of the year is approaching. What are your rights and obligations, especially in this particular period? We have the answers to 15 key questions.
Can leave be carried over from one year to the next?
Some companies require leave to be taken before the end of the year, others allow for it to be carried over into March of the following year, or even undefinitely. The basic rule is: "Employees must take all of their holidays during the current year."
However, they can carry them over until 31 March of the following year if they have not been able to take days off because of departmental or team requirements. Or if they were still off when starting their maternity or parental leave, or were unable to take all of their holidays because they were unable to work.
A small bonus for new employees: the days accumulated during the first year in a company can be carried over until 31 December of the following year.
Finally, companies can, if they want, set up a more flexible system, for example an unlimited carry-over from one year to the next.
Whatever the company policy, however, employees who do not take their holidays within the allotted time, will lose their right to any days not used.
I didn’t take my leave because I was furloughed. Can that be part of the requirements of the department and thus justify a carry-over until March?
When asked about this, Castegnaro’s labour lawyers replied: "Partial unemployment is not one of the cases of carry-over of leave authorised by the labour code." So covid-19 does not change the basic rule, even though some companies may have decided to relax it at this time. Luxair for instance, is planning unlimited carry-over from one year to the next as a one-off because of the exceptional circumstances due to the pandemic.
Are there limits to unlimited carry-over in some companies?
“The law does not set an ultimate limit on such voluntary carry-over by the employer,” the lawyers argue. Myguichet.lu only indicates the following: "To guarantee the health and safety of employees at work, it is advised not to carry over holidays beyond a period of 18 months."
Can leave not taken be replaced by financial compensation?
No, according to Castegnaro’s labour lawyers. They specify: "In accordance with article L. 233-18 of the labour code, the employee cannot renounce the leave to which he is entitled, not even through the payment of a compensatory allowance."
The rule only applies to the 26 days of statutory leave. Some company agreements or collective agreements provide for additional days. They are not concerned. “In the absence of specific rules on this subject, extra-legal leave could, if necessary, be the subject of financial compensation in accordance with the procedures laid down by the employer and in agreement with the principle of contractual freedom,” the lawyers say.
On the other hand, is an employee has untaken leave when leaving a position, the employer must pay out the corresponding number of days in compensation. An employee whose company allows unlimited carry-over can therefore end up with a lot of benefits at the time of departure…
Who is entitled to more than 26 days of leave per year?
Agreements within companies or collective agreements may provide for more than 26 days of leave per year.
For example, in the public service, an employee is entitled to 32 working days of vacation leave, which increases to 34 days from the age of 50 and 36 at 55.
Certain categories of employees are automatically entitled to additional days of leave: six for disabled employees, war invalids, those who have suffered industrial accidents, three for mining and mining workers and one for each eight-week period, consecutive or not, during which the employee or apprentice was not able to benefit from an uninterrupted rest of 44 hours per week.
When can the company refuse holidays?
"The leave is in theory fixed according to the desire of the employee," the lawyers at Castegnaro state. Normally, it must be fixed at least one month in advance. The employer may refuse to grant leave because of the needs of the employee's department.
“Since this wording in the labour code is vague, the employer has a large margin of leeway and could, for instance, in the context of covid-19, invoke the large number of employees who are unable to work, or on leave for family reasons (during the crisis), or even a strong recovery in activity (after the end of the crisis)," they add.
A special feature also concerns employees in the hospitality sector, who normally are not allowed to take holidays between 15 June and 15 September.
Can the company require you to spread your holidays over several periods?
Usually, leave can be taken over different periods, says the government on Myguichet.lu. Again, departmental requirements may warrant splitting, but “one of the fractions of leave must be at least two calendar weeks.”
Employees working in credit institutions and investment firms must take at least 10 consecutive days of leave per year.
Can the company force employees to take time off at a specific point?
The employer may not impose individual leave dates without the employee’s consent or require the employee to take leave without pay. In the event of closure of the business for annual leave, the period of collective leave must be fixed in agreement with the staff delegation or, failing that, with the employees concerned. Three collective labour agreements recognise a general obligation to impose a collective leave period: that of the building and civil engineering sector, of the professions of sanitary installers, heating and air-conditioning installers and refrigeration installers, and ceiling and facade occupations.
Partial unemployment is a game-changer, as businesses had to use up the remaining 2019 paid leave. However, the rule remains the same, according to Castegnaro: "In this context, some employees had to have their leave from previous years paid off. Finally, it’s necessary to comply with the dates fixed in the framework of collective leave provided by mutual agreement between the employer and the staff delegation or, failing that, the employees."
Can the employee cancel their leave, especially now during this crisis?
“The employer has no legal obligation to agree to the cancellation of leave already granted to the employee following a request,” say labour lawyers. Leave may be cancelled only by mutual agreement of both parties
And can the employer cancel them?
"The legislation does not touch on the employer’s ability to unilaterally cancel leave which has already been granted to employees," the lawyers say. But "it could be held by the court of appeal that the leave once granted by the employer constitutes an irrevocable unilateral act the withdrawal of which is admitted only in case of express or unequivocal agreement of the employee. Therefore, the employer cannot in principle unilaterally cancel employee leave.” However, the grand-ducal regulation of 3 April 2020, allows employers affected by activities that are essential for the maintenance of the vital interests of the population and the country, to cancel and refuse leave, during the crisis.
Is paid leave still being accumulated even during partial unemployment?
Yes, according to the lawyers.
How is leave compensated?
The leave compensation is the average salary, including overtime and incidental bonuses for the three months preceding the leave or the last 12 months for employees whose earnings vary widely.
What does the OGBL think about the rules in Luxembourg?
“We believe that people should take their leave,” says Jean-Luc de Matteis, who is in charge of these issues at OGBL. The union says it is satisfied with the current law, which allows a certain “freedom within companies”, and it has not asked for more harmonised rules.
Do companies using partial unemployment have to pay for their employees' leave?
For the time being, yes. This handicaps some businesses that have almost no current incomes and have to pay for their employees' leave. Horesca, the federation of restaurants and cafes, particularly affected, plans to negotiate with the government for a change. France, for instance, decided to grant 10 days per employee under certain conditions.
What frameworks are in place in our neighbouring countries?
In France, the private employee acquires 2.5 working days per month of actual work with the same employer, or 30 per year for a full year of work. They may be carried over from one year to the next only if the employer and the employee agree. They are compensated if the employee was unable to take them because of the employer.
In Belgium, we speak of "annual holidays", of four weeks for a full-time employee for a whole year. They cannot normally be carried over from one year to the next according to L'Echo . This is only possible for extra-legal leave.
This article was originally published in French on Paperjam.lu and translated and edited for Delano.