Sick leave: legal framework
Illness from the employee's perspective
Article L.121-6 of the Luxembourg Labour Code.
Principle: An employee who is unable to work because of illness will have to complete certain formalities in order to be entitled to the legal protection measures surrounding the illness. Otherwise, they will not be protected against a possible dismissal.
The obligations of the employee
Notification to the employer
In case of incapacity due to illness, the employee is obliged, on the one hand, to notify the employer from the first day of absence, and, on the other hand, to submit their medical certificate no later than their third day of absence.
Notification of absence can be made to the employer directly or through a third party. It can be done by any means (orally, text, fax, email). As the burden of proof is on the employee, they are highly advised to use a written means of notification (Labour Tribunal 12/11/1991).
Presentation of the medical certificate
Before the expiry of the 3rd day of incapacity, the employee must ensure that the employer is in possession of their medical certificate (Labour Tribunal 4/11/1991). The absent employee will have to return the first part of the medical certificate to the Caisse Nationale de Santé/National Health Scheme, the 2nd to their employer and keep the 3rd.
Note that the medical certificate is only a simple presumption that can be contested by all means.
Exemptions: Urgent hospitalisation
There are some exceptions. For example, in case of urgent hospitalisation, the employee has a period of 8 days to submit their medical certificate to the employer.
Extension of incapacity for work
When the incapacity of the employee extends beyond the duration initially fixed, they will have to inform the employer and this, from the first day of the resumption planned initially and submit their medical certificate.
The delivery of the medical certificate is done:
- Initially to the Caisse Nationale de Santé/National Health Scheme, before the expiry of the 2nd day following that initially planned for the resumption of work,
- And subsequently to the employer before the expiry of the 3rd day of extension of the incapacity.
Note that in case of uninterrupted incapacity of more than 6 weeks, the occupational physician, after having been informed by the employer, will be able to decide whether the employee should undergo a medical check-up.
Illness during periods of leave
If the incapacity occurs during the employee's leave and if they fulfil their obligations (informing the employer and submitting the medical certificate), these days will not be counted as annual leave and may therefore be carried forward.
Leaving the house during the incapacity for work
In principle, the employee is not allowed to leave the house during the first 5 days of incapacity for work. However, they may leave the house to go to a medical check-up or to a health care provider at any time.
After this period, the employee may leave the house between 10 a.m. and noon and between 2 and 6 p.m. Unless otherwise specified, the employee may not take part in sports or carry out any activity that is incompatible with their condition. Similarly, the employee cannot attend a drinking establishment, except to eat, and this, provided they have previously notified the Caisse Nationale de Santé/National Health Scheme.
The absent employee will have to provide the CNS with their complete address in anticipation of possible checks.
Please note: During the period of incapacity, the employee remains subject to an obligation of loyalty and cannot therefore exercise an activity incompatible with their condition.
Protection against dismissal
The employee who has duly fulfilled their obligations, namely the notification of the employer from the first day of the absence AND the delivery of their medical certificate at the latest on the 3rd day, will be eligible for the legal protection against dismissal.
As such, the employee is protected against dismissal during their incapacity and for a maximum period of 26 weeks. During this period, the employer cannot dismiss the employee with prior notice, or summon them to a prior interview, or dismiss them for serious misconduct prior to the incapacity.
An employee who succeeds in proving that the employer dismissed them with due knowledge of their state of health subjects the employer to a charge of wrongful dismissal.
After this period, the employer is once again entitled to dismiss the employee.
However, there are cases in which the protection against dismissal is waived:
- When the employee's incapacity results from a crime or an offence in which the employee participated knowingly;
- When the letter of dismissal was received by the employee before the employer became aware of the incapacity;
- When the employee did not show up for medical examinations without justification;
- When the employee has not respected the notification obligations.
Please note: Submitting the medical certificate after the 3rd day is sufficient to deprive the employee of their protection against dismissal but has no influence on the collection of their salary.
Illness from the employer's perspective
The employer must also fulfil certain obligations in case of illness of its employee. By declaring the periods of sickness of its employees monthly, it makes sure that the employee’s salary is paid beyond the 77th day of illness.
Obligations of the employer
Declaration of the incapacity
In the event of incapacity for work, the employer is obliged to report monthly to the Joint Social Security Centre all the absences of his employees. The employer must submit the form within 10 days of each elapsed month, or report the incapacity via Seculine.
The employer must provide various information on the form:
- The national identification number;
- The full name of the employee;
- The start and end dates of the incapacity;
- The number of hours of absence;
- The type of incapacity for work.
Luxembourg has signed up to the principle of salary continuance. This requires the employer to maintain the remuneration of an employee who is incapacitated because of illness, until the end of the month in which the 77th day of incapacity of work falls, for a reference period of 18 successive months.
After the 77th day of illness, the Caisse Nationale de Santé/National Health Scheme takes over from the employer and compensates the employee.
This principle can only be applied when two conditions are met: the employee must have notified the employer of their absence within the required time and the employer must have declared the periods of incapacity of its employees monthly.
Please note: The 77 days are counted in calendar days over a reference period of 18 months.
Power of action of the employer
After having duly declared the periods of incapacity of its employees to the Joint Social Security Centre and having continued to pay the wage, the employer regains a certain margin of manoeuvre. After a certain period of time, it regains both the discretionary power of dismissal and the possibility of requesting repayment of part of the wages paid.
Dismissal of the employee
In principle, the employer cannot dismiss an employee who has been incapacitated if they have duly fulfilled their obligations and provided that they are still in the 26-week period.
Beyond this period or when the employee has not fulfilled their obligations, the protection against dismissal elapses and the employer regains full powers. In this case, the employer may dismiss the employee with or without notice and summon them to a prior interview without the latter being considered as wrongful.
Repayment of the incapacity
The employer can benefit from the repayment of the periods of incapacity only if it has declared periods of incapacity to the Joint Social Security Centre monthly and if it has answered any questions from the Centre.
The employer will be reimbursed up to 80% of the base for the periods of illness. To calculate the reference base, the employee's gross salary plus employer contributions are taken into account.
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.