Coronavirus: application of the Covid Check scheme in companies

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Newsflash
Datum:
21 Okt 2021

Newsflash

Von:
Dorothée David

The Law of 18 October 2021[1] on the measures to combat the Covid-19 pandemic was published in Mémorial A no. 732 of 18 October 2021.

From 19 October until 18 December 2021 inclusive, employers can apply the Covid Check scheme in all or part of their company (some provisions will only come into effect on 1 November).

  1. The Covid Check scheme for businesses in brief

The Covid Check scheme applies to establishments that are open to the public, gatherings or events to which entry is only allowed for those with:

  • either a vaccination certificate as required by law, with a QR code,
  • or a recovery certificate (“certificat de rétablissement”) as required by law, with a QR code,
  • or a Covid-19 test certificate as required by law, showing a negative result, either with a QR code or certified by somebody specified by law,
  • or a self-administered test carried out on the spot with a negative result, although this last option is only valid until 31 October 2021.

 

It is worth pointing out that according to Luxembourg’s National Commission for Data Protection (CNPD), employers have no legal basis for processing personal data under the Covid Check scheme. Therefore, in view of the CNPD’s opinion, the recommendation is that personal data should not be processed under the Covid Check scheme in companies, as such processing could be illegal.

  • Is the Covid Check scheme mandatory for workplaces?

No. Any company can choose to apply the Covid Check scheme to all or part of their company, as defined by law[2], in order to protect the health and safety of the workers concerned. Furthermore, access to and the continuity of public services must remain guaranteed. 

In practical terms, there is no legal obligation for employers to apply the Covid Check scheme. If they do not, they must continue to comply with the temporary health recommendations outlined by the Health Directorate (Direction de la santé).

  • What needs to be done to implement the Covid Check scheme in a company?

If an employer chooses to apply the Covid Check scheme, they must fulfil the following obligations:

  • informing and consulting with the staff delegation in advance in companies with fewer than 150 employees or involvement of the staff delegation in the decision in companies with at least 150 employees (if no agreement is found, implementation of the Covid Check scheme will not be authorised);
  • informing the Health Directorate (Direction de la santé) electronically in advance: the perimeter of the venue hosting the gathering or event must be clearly defined, and information must be provided about the dates or periods in question;
  • visible display of the details of the applicable Covid Check scheme.
  • Can the employer incur any penalties for using the Covid Check scheme in the company?

Yes. As of 1 November 2021, any breach of the obligations relating to notification and entry checks arising from the Covid Check scheme will mean that an employer who has chosen to apply this scheme may face an administrative fine of up to 6,000 euros (without prejudice to any individual action that may be taken by employees).

  • Is access to company canteens also subject to the Covid Check scheme?

Yes. The Covid Check scheme will be compulsory in company canteens as of 1 November 2021 (it will remain optional for outdoor eating areas), without the need for prior notification.

Any breach of this obligation will mean that the operator may face an administrative fine of up to 4,000 euros.

  1. What does this mean in practice?

The option to apply the Covid Check system in all or part of a company comes with lots of practical questions that may have consequences in terms of labour law:

  • Is it possible to allow one-off access to an employee who is not physically able to present their Covid Check certificate or who would undertake to respect other requirements?
  • Should the Covid Check scheme also apply to other people who want to access the area covered by the Covid Check scheme (customers, suppliers)?
  • Who should cover the cost of the tests that need to be carried out for employees who are not vaccinated/not recovered (what about the resulting need to process personal data)?
  • Does the time spent carrying out the tests or waiting for the check at the entrance to the company/institution/location covered by the Covid Check scheme count as time spent working and so paid as such?
  • Is it possible to list those who have been vaccinated / who have recovered to make it easier to carry out the checks?
  • Can an employee who does not produce a certificate be sanctioned? Is dismissal possible?
  • Can an employee demand to work remotely as an alternative to physical presence on the grounds that the workplace is subject to the Covid Check scheme?
  • Does proof have to be kept that Covid Check certificates have been checked (properly)? In what form?

CASTEGNARO’s lawyers are here to discuss any questions about the implementation of the Covid Check scheme and its consequences in terms of labour law.

 

[1] Law of 18 October 2021 modifying: 1. the modified law of 17 July 2020 on the measures to combat the Covid-19 pandemic; 2. the modified law of 8 March 2018 on hospitals and hospital planning; 3. the modified law of 22 January 2021: 1. modifying articles L. 234-51, L. 234-52 and L. 234-53 of the Labour Code; 2. introducing a temporary exemption from the provisions of articles L. 234-51, L. 234-52 and L. 234-53 of the Labour Code.

[2] Article 1, point 27 of the modified law of 17 July 2021 introducing a series of measures to combat the Covid-19 pandemic and modifying: 1. the modified law of 25 November 1975 on issuing medication to members of the public; 2. the modified law of 11 April 1983 on the regulations regarding the release and advertising of drugs.