As the pandemic continues, further questions have arisen from ABBL Members. The FAQ has been updated with the most recent positions on the below topics, to provide support throughout this period and for upcoming decontainment measures.
- Social & labour law
- Training requirements
- Data security
- Short-time work (chômage partiel)
Q: In the context of Covid-19, some Belgian, French or German cross-border workers may perform home-working. Would the related number of days spent in these three countries be considered for the calculation of the number of days triggering taxation of a portion of the employees’ wages in one of these countries?
A: This question is being discussed with the competent authorities in France, Belgium and Germany at the initiative of the Luxembourg Government.
According to a publication from the Luxembourg Ministry of Finance on 19 May, as the current situation is considered by the Belgian and Luxembourg authorities as “force majeure”, the number of days spent at home by Belgian cross-border workers (notably for home-working) as from 11 March 2020 (and until 30 June) will not be taken into consideration for the computation of the 24 days threshold under the DTT Luxembourg Belgium with an exception for the days an employee would have worked from home in a normal situation, especially when this is foreseen in the working agreement.
As from 1 July 2020, the application of the agreement will be extended until the end of each month if the two competent authorities so agree. The continuation will occur in written form at least one week before the start of the next month.
According to a publication from the Luxembourg Ministry of Finance released on 19 March, the current situation is considered by the French and Luxembourg authorities as “force majeure” as from 14 March 2020 (and until further notice). As a result, the presence at home of a French cross-border worker to exercise his/her activity, shall not be taken into consideration for the computation of the 29 days threshold under the DTT Luxembourg-France and the related Protocol.
According to a publication from the Luxembourg Ministry of Finance released on 6 April, the current situation is considered by the German and Luxembourg authorities as “force majeure” as from 11 March 2020 (and until further notice). As a result, the presence at home of a German cross-border worker to exercise his/her activity, shall not be taken into consideration for the computation of the 19 days threshold under the DTT Luxembourg-Germany and the related Protocol, with an exception for the days an employee would have worked from home in a normal situation, especially when this is foreseen in the contract of employement. An agreement to this effect was signed on 3 April 2020.
Q: Is the coronavirus outbreak a force majeure event?
A: Force majeure clauses are usually contained in commercial agreements, and the scope and effect of such clause is determined on a case-by-case basis, depending on how such event is defined in the relevant clause, and it shall be interpreted regarding the facts described in the agreement.
If the agreement does not contain a force majeure clause, it is the law applicable to the agreement that will provide a definition of the force majeure.
Under Luxembourg law, the force majeure event can be defined as an unexpected event leading to the absolute or practical impossibility, beyond the power or control of the contractor, to perform its obligations under the agreement.
In the absence of the characterisation of the coronavirus outbreak as ‘force majeure’ by the legislator, each case will need to be carefully assessed regarding its specific facts, to determine whether the coronavirus can be interpreted as ‘force majeure’ or an unexpected event resulting in the absolute impossibility, beyond the power of the contractor, to perform its contractual obligations.
Q: Is it possible to use an electronic signature such as LuxTrust to sign legal documents remotely?
Lux Trust S.A. is approved as trusted qualified certificate provider in Luxembourg, which means that the certificate issued by it in relation to an electronic signature allows to ensure that the signatory is the holder of the electronic signature and that this signature expresses its full consent. By this certification process, the electronic signature is a qualified electronic signature which is presumed to meet the legally required conditions and thus has the same binding effect as a handwritten signature.
Social & labour law
Q: What are the obligations of the employers in terms of health and safety?
The general rule is that the employer has the obligation to take all relevant measures in order to protect the employees’ health and safety.
The employer has an obligation of means and must ensure that staff is working in a secure and safe work environment, but the employer is not automatically responsible if an employee gets infected at the workplace. This means that the burden of proof is on the employee’s side in order to demonstrate that the employer has committed an error or negligence.
Measures concerning health and safety in the workplace fall within the employer’s obligation to inform and consult the staff delegation, as well as the health and safety delegate. In case the employer has more than 150 employees, putting in place these measures falls within the co-decision rights of the staff delegation.
In the context of the return to work, the employer must assess the employees risk of exposure to the virus.
Furthermore, the employer has an information and awareness-raising obligation towards staff, especially concerning barrier gestures and social distancing.
Q: What are the obligations and responsibilities of the employee?
Employees are obliged to follow the security and heath instructions imposed by authorities and the employer. Disregard of such obligations may entail disciplinary actions against an employee.
Q: Can employers impose the wearing of masks by employees?
Yes, if the distance of 2 metres is likely to be a problem (for example in case of walking through a corridor or open space), employees have the obligation to wear a mask and take care of the health of their colleagues; this means that an employer may impose the wearing of masks. Disregard of this obligation may lead to disciplinary action.
Q: Does the employer have the right to have employees tested before returning to work?
No, the employer does not have such a right. This covers, for example, immunity tests or completing a medical questionnaire. The willingness to do such a test or give such information is part of the employee’s private life. An employee can of course voluntarily decide to submit to such a test or voluntarily give such medical information.
Q: Can the employer impose temperature control at the entrance to the company?
The CNPD provides recommendations in the context of the coronavirus crisis.
The CNPD takes the view that it is not permitted to collect information or search for possible symptoms presented by an employee/external person and their relatives in a systematic and generalised manner, or through individual enquiries or requests.
Employers should refrain from collecting in a systematic and generalised manner, or through individual enquiries and requests, information relating to the search for possible symptoms presented by an employee as well as their relatives.
Instead, the employer should raise awareness and train employees on the right behaviour to be adopted at the workplace, implement preventative measures and internal regulations, which may include an obligation for the employee to inform the employer in case the employee was exposed to an infected person.
In the event an infection is reported, the employer may, as part of its health and safety obligations, register:
- the date and identity of the person suspected of having been exposed, so as to be able to communicate this to health authorities if requested;
- the organisational measures taken (containment measures, teleworking, contact with the ASTF, etc.).
Q: Can the employee exercise a right of withdrawal in the event of insufficient security measures?
The right of withdrawal is only given in case the employee is confronted by a so-called “imminent and serious danger”. If the employer has taken care to provide a secure and safe work environment, this imminent and serious danger should not be present.
An exception would be the case of a so-called “vulnerable employee”.
Q: Can the employer request that the employee to return to work in the office if that employee is able to work from home?
Yes, the employer has the discretionary right to plan work organisation as he/she considers necessary. If the employer is of the opinion that the employee should perform his/her work in the office premises, the employee may not refuse.
An exception would be the case of a so-called “vulnerable employee”.
Q: When an employe works from home with his/her personal laptop (as the employer does not provide IT material for working from home), does the bank has any obligation in term of ergonomy, security, insurance, others?
As long as teleworking is not a common practice, and is carried out in exceptional circumstances, the employer has no obligation concerning ergonomy, security or insurance.
Q: Are there any specific recommendations on the treatment of pregnant women?
Should they benefit from preferred treatment to work from home? Or should they work from home in any case?
Telework may be proposed in any case due to the specific condition of the employee.
Q: Are there any specific recommendations concerning “vulnerable persons”?
Telework may be proposed due to the specific condition of the employee.
“Vulnerable persons” may also work at the office premises, on condition that the employer has provided them with protection measures appropriate to their vulnerability.
Q: How do you manage an employee who refuses to come at work due to a supposed risk because of a particular health condition? Is there a specific procedure for so-called “vulnerable persons”?
Telework may be proposed in any case due to the specific condition of the employee.
In the case this may not be possible, the ASTF proposes the following procedure:
- The employee downloads the vulnerability form and has it duly completed by his or her doctor. He/She sends it by e-mail to the ASTF: email@example.com.
The data is subject to medical secrecy and strictly confidential. Only the occupational health service has access to it.
- The employer downloads the workstation layout form and duly completes it and sends it by e-mail to the ASTF: firstname.lastname@example.org.
- The occupational physician will give his/her opinion on the adaptability of the workstation and the working conditions of the “vulnerable person”. This advice will be sent to both the employer and the employee.
Please refer to the ASTF website.
Q: What consequences are to be drawn by the employer from a certificate of vulnerability?
In case the employee has a certificate certifying that he/she is a “vulnerable person”, the employer has to assess if the practical work environment enables the employee to normally execute his/her work in the premises of the employer.
The employer may have to adapt the workplace of such a “vulnerable employee”. In order to do this assessment, the employer asks for the ASTF’s opinion.
If the ASTF considers that the workplace is adapted to the “vulnerable employee’s” situation, he/she would have to work in the premises of the employer (unless the employee has a valid sickness certificate); if the ASTF considers that the workplace is not adapted and home-working is not possible, the employee should then be able to seek a sickness certificate from his practitioner.
Q: Can an employee be forced to work from home with his/her personal computer? If the employee refuses / don’t have appropriate material, what is his/her status ?
If the employee has the appropriate personal equipment, the employee cannot refuse to work from home. If the employee does not have appropriate personal equipment, the employer may provide the employee with appropriate professional equipment. In such a case, the employee cannot refuse to work from home. If the employer cannot provide the employee with such equipment, the employee would stay at home on the basis of a extraordinary paid holiday which would not be deducted from the annual holiday leave of the employee.
In line with CSSF guidelines, telework must be performed in a protected IT environment ensuring the protection and confidentiality of the data.
Q: If employees usually works in several premises, should they be instructed to remain in their primary location and avoid travels between premises? If their presence in a particular location is mandatory, should they be allowed to work from home between moves?
Yes, shift working and/or splitting of teams are best practices in case of workplace risks in a pandemic situation.
Q: When do we need to decontaminate the premises?
Evaluate the need to clean the premises before return to work:
- if the premises have been free of any staff during more than a week, cleaning may not prove necessary as the virus does not normally survive on surfaces more than a few days. The same approach may be applied if nobody in your staff has been infected.
- in any other case, and in particular if infected persons were present on the premises during the last 5 days, complete cleaning should be carried out: surfaces and objects potentially contaminated with body fluids, door handles, electric switches, telephones, computer keyboards, work stations, bathrooms etc.
In any case, ensure that the workstations, as well as door handles, electric switches, telephones, computer keyboards, workstation, bathrooms etc. are cleaned every day.
Q: Can we encourage people to work even if in reduced capacity? i.e. if an employee’s work is critical for the bank and when the baby is having a nap.
The employer can suggest the employee to work from home, even in reduced capacity, but as the employee is on “special leave for family reasons” paid by the state, he is not obliged to accept.
Q: Is there an estimation of the timeframe for the payment of social benefits by the CNS in the context of the exception made to the 78-week mechanism?
A timetable for the timing of payment by the CNS is available on the CNS’s website.
Q: Concerning the protection against dismissal resulting from the suspension of the 26-week mechanism during the state of crisis, how should ongoing proceedings be handled?
Due to the fact that a legal disposition cannot provide effect for the past, this concerns only proceedings occurring as from 8 April 2020.
Therefore, proceedings started before the 7 April included may still validly be continued.
Q: Is it possible to ask employees to plan the dates of their holiday periods as from now until the end of the year?
The principle remains that holiday is taken at the request of the employee, and an employee is not obliged to decide the dates far in advance.
However, should an employee not have decided far enough in advance, it may happen that the requested period is no longer available, as other employees would have already decided to take their own holiday on the same period, or the employer cannot accept the holiday because of organisational reasons. Such employees would therefore not have the priority on the schedule.
What about extra family leave after 25 May?
The Grand-ducal regulation of 20 May 2020 on extraodinary leave for family reason covers the period between 25 May and 15 July 2020 and is applicable for both Luxembourg resident employees and cross-border employees.
The extraordinary leave may be taken in the context of the COVID-19 health crisis by a parent of a child:
- who was born on or after 1 September 2015 and is dependent on the applicant;
- under the age of 13 who normally attends school but whose school has been closed or classes are still suspended for reasons directly linked to the health crisis or who cannot be taken in by any school or childcare structure because of the implementation of a scheme for alternating pupils’ attendance or the application of imposed barrier measures, subject to producing a certificate attesting the situation issued by the Ministry of Education, Children and Youth.
Parents may alternate taking leave for family reasons. In this case, each parent must send in a separate form.
New forms to be filled by the employee and to be sent to the employer and the CNS are available on the Guichet.lu website.
Q: How are the internships affected by the closure of schools and universities? How should an employer handle such relationships?
In line with governments measure to avoid unnecessary trips and according to the closure of schools and universities, interns should remain at home, unless performance of their tasks is necessary for business continuity.
The opportunity of maintaining or contracting new internships should be analysed on a case by case basis, in accordance with the provisions of the country of residence of the intern, and the provisions of the school/university where the intern studies. The employer should always consider the security of the intern.
The occupation of students/pupils during the holiday is not forbidden, however, there again, the security of the student/pupil should be the priority.
Q: Can the COVID-19 be seen as an occupational disease by the Accident Insurance Association (Association d’Assurance Accident – AAA)?
An employee for whom there is no doubt that he/she became infected from the coronavirus at his/her workplace will be considered as having an occupational disease. There is however a burden of proof upon the employee for all other cases.
Q: How are accidents that occur while the employee is working remotely handle by the AAA?
Should an accident occur while the employee is working from home during the crisis situation, even though the employee has no amendment to their employment contract, the AAA only needs a confirmation of the employer saying that the employee was allowed to work remotely.
During this period, an accident occurring at home is covered as if it would have occurred on the employer’s place of work, with exception to accidents that did clearly not happen during the work. The AAA gives the example of someone who gets injured with a knife while having lunch.
Further details can be found on the AAA website.
Q: Because of the exceptional situation, it may be that banks will not be able to respect the allocation of 1,5% of the salary mass to the training budget. How will this be handled?
This question will be put on the agenda of a next Joint Committee (Commission paritaire) to be discussed between the social partners.
Security of data and recording of telecommunications
Q: During the transition period, what recommendations can be given to the employers concerning the recording of communications?
If, under these exceptional scenarios, firms are unable to record voice communications, ESMA expects them to consider what alternative steps they could take to mitigate the risks related to the lack of recording (see ESMA publication of March 20 on telephone recordings under MiFid II). This could include the use of written minutes or notes of telephone conversations when providing services to clients, subject to prior information being provided to the client of the impossibility to record the call and that written minutes or notes of the call will be taken instead. In these scenarios, firms should also ensure enhanced monitoring and ex-post review of relevant orders and transactions. Consider how this works now that people partially work in the office and at home. Make sure to address issue. They should bring the notes with them and scan them, etc. each time they are in the office.
Q: How to ensure business continuity and security of the bank’s data?
Overall, it is important to set clear rules as to who may, or should, come back to work, bearing in mind that home office should still be the default. Remind people that they must remain diligent also when working at home and to protect bank data. Ask them to regularise things for which workaround solutions were applied, such as for telephone recordings or other matters. Review, update and effectively inform employees about security requirements on a regular basis.
Short-time work (chômage partiel)
Q: Are banks entitled to request short-time work?
Banks should provide justification for their requests, and these will be analysed on a case by case basis directly by the Ministry of Finance. In any case, they should give evidence of financial losses and reduction in activity.