The ruling about maternity leave in Luxembourg
What is maternity leave?
Maternity leave is a right granted to women to enable them to be well prepared for the birth of their child(ren) and to rest afterwards. It is divided into two periods, antenatal leave (before birth) and postnatal leave (after birth).
Who is entitled to maternity leave?
Maternity leave applies:
- to all women,
- without distinction of age or nationality,
- married or not,
- who are bound by an employment or apprenticeship contract or,
- who are employed as pupils or students during the school holidays,
- provided that they are not eligible for other more favourable statutory or contractual provisions. (Art.L.331-1)
Women who are self-employed may also benefit from maternity leave.
The father of the child, for his part, is entitled to 10 days (or more according to the status/collective agreement applicable in the company) of extraordinary leave at the birth of the child.
Please note! It is important to note that a pregnant woman must have taken out sickness and maternity cover for at least 6 months in the 12 months preceding the start of maternity leave.
How to apply for maternity leave?
To be eligible, the employee must provide her employer with a medical certificate informing it of her pregnancy and indicating the approximate date of delivery. A copy of this certificate must be submitted to the Caisse Nationale de Santé (CNS)/National Health Scheme. This certificate must be issued during the last 12 weeks of pregnancy, not before.
Caisse Nationale de Santé
Département des indemnités pécuniaires
125, route d’Esch
Grand Duchy of Luxembourg
Duration of maternity leave
Antenatal leave is 8 weeks before the expected date of delivery.
Postnatal leave is 12 weeks after the actual date of delivery.
- If the delivery takes place before the expected date, the part of the antenatal leave not taken is added to the postnatal leave without the total duration of the maternity leave being greater than 20 weeks;
- If the delivery takes place after the expected delivery date, the maternity leave is extended without the duration of the postnatal leave being reduced.
The women concerned have a tool at their disposal on the site of the Caisse Nationale de Santé/National Health Scheme allowing them to calculate the key dates of their maternity leave.
Example: If the expected date of delivery is the 15th of May:
- The medical certificate can be issued from the 19th of February 2019
- The date of the beginning of antenatal maternity leave is the 20th of March 2019
- Postnatal leave will end on the 6th of August 2019
So, if the expected delivery date is the 15th of May and if the actual delivery date is the 7th of May, then 8 days (15 -7) of the antenatal leave will be carried forward to the postnatal leave, which will end on the 14th of August 2019.
After delivery, a copy of the birth certificate of the newborn is to be submitted to the Caisse Nationale de Santé (CNS).
CNS - Indemnités pecuniaires
125, route d'Esch
Grand-Duchy of Luxembourg
Tel.: (+352) 27 57 - 1
Fax: (+352) 27 57 27 - 58
Remuneration for maternity leave
During the maternity leave, a woman who has a professional activity (salaried, apprentice or self-employed) is entitled to a financial maternity benefit.
In the case of women employees or apprentices, the financial maternity benefit will be paid by the CNS.
- To determine it,the highest salary received during the 3 months prior to the maternity leave will be taken into account.
- Where applicable, this salary can be supplemented by the average amount of complementary and accessory benefits received during the 12 months preceding the month prior to the start of the maternity leave;
In the case of self-employed women, the contribution base applied at the time of the maternity leave will be taken into account.
The financial maternity benefit cannot:
- Be lower than the minimum monthly social minimum wage;
- Exceed 5 times the minimum monthly social minimum wage.
In the case of part-time work, the threshold is established according to the minimum hourly social wage.
Financial maternity benefits cannot be cumulated with sickness benefits nor any other professional income.
During maternity leave, the employment contract continues to run and is therefore considered as an effective period of work.
The employer is therefore required:
- to take maternity leave into consideration when calculating the days of annual leave. The days of leave not taken by the employee before to the start of the maternity leave can be deferred within the legal deadlines (until 31 March of the following year);
- to take into account the period of maternity leave when calculating the seniority and related rights;
- to keep the employee's position open while she is on maternity leave, or keep open an equivalent position corresponding to her qualifications and with a salary at least equivalent to her previous one;
- to maintain the advantages acquired by the employee prior to her maternity leave;
- allow her to benefit from any improvements in working conditions introduced during her maternity leave.
Termination of the working relationship
If the employee does not wish to return to work at the end of her maternity leave in order to be with her child, she can resign without notice. She will have to send to her employer a resignation letter following maternity leave, and will not have to pay a termination indemnity.
Moreover, she may assert her right to priority for re-employment for a period of one year.
Resignation without notice is only possible in the event where the employee decides to give up her job in order to fully and exclusively devote herself to the education of the child.
Resignation without notice is not possible for women who simply wish to change employer at the end of their maternity leave.
The pregnancy certificate: protection against dismissal
Women who are expecting a child or who have just given birth are subject from the point of view of labour law to special provisions, particularly as regards the protection of the pregnant woman against dismissal.
If the pregnant woman receives a letter of dismissal before having given her pregnancy certificate to her employer, she will have a period of 8 days from receipt of the letter of dismissal, to send her certificate and benefit from the protection. against dismissal.
Scope of protection of the pregnant woman
The pregnant woman is protected against dismissal with notice, that is to say the dismissal which is based solely on the skills of the employee or on the necessities of the operation of the company.
On the other hand, the pregnant woman is not protected against dismissal with immediate effect, that is to say, a dismissal on the grounds of serious misconduct making immediately and definitively impossible the maintenance of the working relations. However, in this case the employer is obliged to follow a particular procedure. It must immediately lay off the employee and ask the court for leave to dismiss.
Dismissal cancellation procedure
The dismissed pregnant woman must request the cancellation of the dismissal within 15 days of sending (and not of reception) of the dismissal letter.
The sending of the medical certificate within 8 days of the dismissal does not change the starting point of the time limit for taking action, which always begins to run with the sending of the letter of dismissal.
In case of unlawful dismissal or during the period of protection, the dismissal will be declared null and void and the employee will not be forced to leave the company or, if the case arises, may be reinstated.
Claim for damages
In the event of wrongful dismissal, the pregnant woman has the possibility to claim compensation for her loss in the form of damages within 3 months following the dismissal.
The pregnant woman can thus bring an action for a declaration of invalidity and/or an action for damages.
Statement of lapse
When the employee was already pregnant at the time of the dismissal but was not aware of the fact and she missed the 8-day period to provide the pregnancy certificate, she can ask the judge for the statement of lapse, i.e. the authorisation to bring the action for annulment despite the expiry of the time limit.
The courts, however, reserve the right to decide whether or not to grant such a request.
Axis Advice is based on up-to-date data and reliable sources. However, the articles are provided for information purposes and do not constitute binding legal advice. Although Axis makes every effort to keep the content of this article correct and up-to-date, no rights can be derived from it.