CORONAVIRUS: new provisions regarding family support leave

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Date:
26 Jun 2020

Newsflash

By:
Dorothée David

The Law of 20 June 2020 introducing family support leave within the context of combating the Covid-19 pandemic (hereinafter the “Law”) was published in Mémorial A no. 533 of 25 June 2020.

The Law takes over from the Grand-Ducal Regulation of 3 April 2020 introducing family support leave during the state of crisis (see our Newsflashes of 6 April 2020 and 18 May 2020), which came to an end on 24 June 2020[1].

The Law came into force on 25 June 2020 for a period of five months. During this period the following provisions, among others, apply:

Conditions for being granted family support leave: as a reminder, family support leave is paid leave that can be granted to an employee, self-employed worker or public official to look after another adult with a disability or an elderly person following the temporary closure of a registered establishment, within the context of combating the Covid-19 pandemic.

In order to be able to take family support leave, both of the following conditions must be met:

  • the registered establishment must have fully or partially closed within the context of the Covid-19 pandemic;
  • the employee, self-employed worker or public official must look after the adult with a disability or elderly person with whom they live at home.

If these conditions are fulfilled, the Minister for Disability and the Elderly will send the person applying for leave a certificate confirming the need for family support leave.

Information for the employer: the employee must:

  • inform the employer of their absence, either personally or via an intermediary, orally or in writing, on the same day;
  • submit the ministerial certificate mentioned above to the employer and the Caisse Nationale de Santé (CNS). This certificate is equivalent to a medical certificate within the meaning of article L. 121-6 (2) of the Labour Code with regard to the employer and the CNS.

Protection against dismissal: having been informed by the employee of the latter’s absence in accordance with the provisions outlined above, the employer cannot dismiss the employee or summon them to a preliminary interview.

However, the Law specifies that this inability to dismiss does not apply:

  • if the ministerial certificate mentioned above is not presented to the employer;
  • if the employer’s warning, or the presentation of the certificate to them, take place after receipt of the dismissal letter, or the summons to a preliminary interview respectively.

In addition, the Law stipulates that protection against the employee’s dismissal does not impede:

  • the expiry of a fixed-term employment contract, or
  • the termination of a fixed-term or open-ended employment contract due to the employee’s gross misconduct.

The Law specifies that termination in breach of these provisions constitutes wrongful termination.

Duration and end of family support leave: family support leave is no longer limited to the duration of the state of crisis, and the Law stipulates that it comes to an end if the registered establishment informs the minister:

  • that all or part of its activities are resuming, and;
  • there is a space available in the registered establishment for the user.

 

Funding: the Law specifies that:

  • sick pay is due during periods of family support leave;
  • the government will cover the full payment of sick pay made by virtue of family support leave;
  • the obligation to maintain the full salary stipulated by article L.121-6 (3) of the Labour Code does not apply to family support leave.

 

The Employer’s mutual insurance (‘Mutualité des Employeurs’) will also cover the full reimbursement of salaries and other benefits, including employers’ costs, paid by the employer for the incapacity for work of employees benefiting from family leave.

 

[1] As a reminder, the state of crisis began on 18 March 2020 and ended at midnight on 24 June 2020.