Post-COVID: Reminder of the current rules

In order to support its members in this post-COVID period, ABBL legal experts have made an inventory of the rules in force.

Germany

Extension of COVID amicable agreement until 31 December 2021.

Belgium

• Negotiations underway to renew the COVID amicable agreement after 30 September 2021.
• Under the general amicable agreement ( outside COVID), the Luxembourg and Belgian governments have announced an increase of the threshold from 24 days to 34 days from 1 January 2022.

France

Extension of COVID amicable agreement until 31 December 2021.

Germany

Extension of bilateral agreements until 31 December 2021.

Belgium

Extension of bilateral agreements until 31 December 2021.

France

Extension of bilateral agreements until 15 November 2021.

National agreement on telework

Although the agreement on the legal regime of telework entered into force on 2 February 2021, this agreement does not apply to telework during the pandemic period. Telework during the pandemic is not done on a voluntary basis by both parties, but to ensure the safety and health of the employee for which the employer is responsible according to the Labour Code (articles 312-1 and 312-2). It will become applicable when the pandemic is over.

Collective Bargaining Agreement

Similarly, article 38 of the Collective Bargaining Agreement for banks only applies when the telework agreement to which it refers applies. Therefore, to date, the compensation provided for in Article 38 is not applicable.

CSSF Circular on telework

The CSSF recalled in a press release that the circular on telework comes into force as from 30 September 2021, but is not applicable during the pandemic, in accordance with article 66 of the said CSSF circular.

• Telework is still recommended when presence is not mandatory to provide an essential service.
• Where telework is not possible, the employer must ensure a distance of at least 2 metres between the employees. If a distance of 2 metres cannot be maintained, the use of a mask is recommended.
• The mask is compulsory for all activities open to the public and taking place in an enclosed area, as well as for gatherings of more than ten people.
• Physical meetings should be avoided whenever possible, preferring online meetings.
• Offices should be regularly ventilated. It is recommended not to share materials or equipment (tablets, pens, communication devices, etc.). More information

Quarantine and isolation

Up to and including 31 December 2021, in accordance with the law of 19 December 2020 providing a temporary derogation from Article L. 121-6 of the Labour Code, an employee who is unable to work due to quarantine or isolation must:

• on the day of the impediment, notify the employer or her/his representative, personally or through an intermediary;
• present to the employer, no later than the eighth day of his absence, an official quarantine or isolation order issued by the competent national authority and serving as a certificate of incapacity for work.

Leave for family reasons

Until 18 October 2021 inclusive, the absence of an employee benefiting from leave for family reasons must be justified either by a medical certificate or by a certificate from the Ministry of National Education or the competent public authority.

This obligation is provided for by Articles 3, 4 and 6 of the Act of 22 January 2021 amending Articles L. 234-51, L. 234-52 and L. 234-53 of the Labour Code and temporarily derogating from the provisions of Articles L. 234-51, L. 234-52 and L. 234-53 of the Labour Code.

General rule: Telework is covered by the Accident Insurance Association (AAA), provided that it respects the provisions of the agreement on the legal regime of telework concluded between the Union des Entreprises Luxembourgeoises, on the one hand, and the trade unions OGB-L and LCGB, on the other.

Exception during health crisis: In case of an accident while teleworking, the employer only has to confirm that the employee was authorised to telework.

Coverage and compensation are the same as for an accident at work. However, non-work related accidents are not considered as an accident at work. Example: a teleworker who cuts himself with a knife while preparing a meal.

The employer cannot set up files or processing of health data related to COVID-19, even if an employee voluntarily informs the employer that he/she has tested positive for the coronavirus or thinks he/she has symptoms.

Furthermore, in the event that an employee is tested positive, it is not the employer’s responsibility to conduct its own investigation or ‘contact tracing’, as this is the responsibility of the health inspectorate.

Taking the temperature of visitors and employees of a company, without the temperature data relating to the identity of the person concerned being recorded or intended to be recorded in a file, does not constitute data processing within the meaning of the General Data Protection Regulation (GDPR). In other words, manual temperature measurements at the entrance to a site and without any records being kept are not subject to the rules and principles of the GDPR.

Similarly, the use of thermal imaging cameras for preventive purposes, which would in no way identify employees or visitors who appear in their fields of vision, without recording and without the possibility of re-using the images, is not subject to the GDPR.

The National Commission for Data Protection (CNPD) has issued a reminder that only competent health professionals have the right to collect, implement and access any medical forms or questionnaires from employees.

The same applies to medical examinations, the results of which are subject to medical secrecy: employers may only receive an opinion on the ability or inability to return to work issued by the health professional. They can then only process this information, without any further details about the employee’s state of health, as they do for other sick leave.

Employers should therefore refrain from collecting information relating to the investigation of possible symptoms from their employees, an outsider and their relatives, even if an employee voluntarily provides this information.

As the law currently stands, there is no legal requirement for vaccination against COVID at the national level.

As mentioned above, the CNPD recalled that, according to Article 9 of the GDPR, the processing of sensitive personal data, including health-related data, is in principle prohibited.

Consequently, the employer cannot require its employees to be vaccinated, nor can it require them to provide information on this subject, including proof of vaccination.

Since the employer cannot know the employee’s vaccination status, he cannot grant him advantages, nor disadvantage non-vaccinated employees.

• European Union: The Reopen EU website allows employers to obtain more information on the situation in EU countries
• Outside the EU: We recommend that you contact the embassies of the countries concerned directly.

The fact that the employee attends the workplace is a direct counterpart to the payment of wages, as per the employment contract. Therefore, the employee cannot refuse to come to the employer’s premises.

The employer, on the other hand, is obliged to fulfil his obligation of health and safety towards his employee.

The rules in force depend on the number of people present at the event:

Between 10 and 50 people

Mask + 2 metres distance. Exception: these rules do not apply if the CovidCheck scheme is applied.

The CovidCheck scheme is a scheme applicable to private persons, establishments or public or private events, welcoming the public, whose entry is reserved exclusively for people who have been vaccinated, cured or tested negative (either self-tested on site) or certified negative.

To invite more than 10 people without having to wear a mask, respect the 2-metre distance between people or allocate seats, you will have to apply the CovidCheck scheme.

Between 51 and 300 people

Mask + 2 metres distance + seat mandatory.

For public events, specific rules in relation with the CovidCheck regime are applicable