Answer ... Current employment landscape: Since the entry into force on 2 February 2021 of the Convention of 20 October 2020 on the Legal Regime for Telework, declared of general obligation, all Luxembourg employers are subject to the convention. For several months, Luxembourg companies have thus been adapting their internal procedures and contracts to comply with the requirements of the convention.
On 27 December 2022, the Law of 23 December 2022 aimed at modifying the conditions under which parental leave can be granted came into force. The law provides that in order to be eligible for parental leave, an employee, a self-employed person or a public servant who is professionally active must have been subject to compulsory affiliation to the social security system during the 12 months preceding the parental leave. The condition of affiliation at the time of the birth is no longer required. Furthermore, the law provides that the grant of parental leave is conditional on the fact that “the employee/self-employed/public servant exercises a professional activity by means of one or more work contracts totalling at least 10 hours of work per week”. The law introduced this amendment to clarify that the plurality of ‘contracts’ corresponds in fact to a plurality of status, activities or employers.
On the same date, the Law of 23 December 2022 aimed at introducing new rules in the road transport sector and adapting some general rules on posting came into force. As regards the general rules, the law makes provision for the following, among other things:
- a reduction in the list of information that must be sent to the Labour and Mines Inspectorate (ITM) at the latest as soon as work begins in the Luxembourg territory, without prejudice to the possibility of an earlier declaration by the posting company;
a reduction in the list of documents requested by the ITM. Companies covered by the law must keep these documents for the duration of the posting:
- at the workplace of the posted employee in the Luxembourg territory; or
- in any place accessible to the reference person for communication with the ITM; and
- a limitation of the application of joint and several liability in the context of a company or subcontracting contract to the situation of subcontracting chains.
Furthermore, the Grand-Ducal Regulation of 25 January 2023 has introduced a new type of leave – cultural leave – which enables individuals who practise a cultural discipline or art in parallel to their main professional activity to take time off to participate in high-level professional events.
In addition, the Law of 29 March 2023, which came into force on 9 April 2023, introduced a definition of moral harassment into the Labour Code, as well as a system of protection against moral harassment in the workplace, requiring employers to comply with certain obligations.
On 28 September 2021, Bill 7890 amending the Labour Code in relation to the right to disconnect was submitted to the Chamber of Deputies. This bill provides, among other things, that in companies where employees use digital tools for work purposes, a regime ensuring the respect of the right to disconnect outside working hours must be defined, at the level of the relevant company or sector.
Furthermore, Bill 7945, submitted to the Chamber of Deputies on 10 January 2022, aims to introduce a new legislative framework for the protection of whistleblowers in Luxembourg, involving new obligations for employers. The purpose of the bill is to guarantee effective and balanced protection for whistleblowers by introducing an official whistleblower status, comprising clearly defined rights and obligations. Private legal companies with 250 or more employees will need to have procedures in place for internal reporting in order to comply with the law as soon as it comes into force.
Bill 8070, submitted to the Chamber of Deputies on 7 September 2022, aims to transpose EU Directive 2019/1152, which promotes more transparent and predictable employment, and protects workers against adverse treatment or consequences. The bill will introduce provisions relating to the following, among other things:
- an increase in the list of essential information that must be provided to employees in relation to their working conditions, as well as the formal requirements and the deadlines within which this information must be provided;
- a framework for the duration of the agreed trial period in fixed-term contracts;
- the introduction of effective, proportionate and dissuasive sanctions for the infringement of national provisions relating to rights deriving from the directive;
- the introduction of a procedure for transitioning to more secure and predictable forms of employment, such as open-ended employment contracts or full-time employment contracts;
the generalisation of the principle of accessibility and free access to training courses, which is the responsibility of the employer by virtue of:
- legal, regulatory or administrative provisions; or
- provisions resulting from a collective agreement declared to be of general obligation, or from an agreement on cross-industry social dialogue declared to be of general obligation; and
- the prohibition of provisions aimed at prohibiting apprentices, employees or temporary employees from taking up a parallel job; and more particularly, the prohibition of so-called ‘exclusivity’ clauses which are not justified by legitimate and objectively verifiable higher interests.
New developments: From 1 July 2022 to 30 June 2023, a transitional period for the social security affiliation of frontier workers who telework from their country of residence has been established. During this period, an administrative tolerance will be applied, allowing frontier workers to continue to telework from their homes without fear of changing their social security affiliation if the 25% threshold provided for in European legislation is exceeded. France, Belgium and Germany have confirmed that there will be no change in the social security legislation applicable to cross-border teleworkers. The tax agreements negotiated in the context of the COVID-19 pandemic remained in force until 30 June 2022. The thresholds as provided by the bilateral tax agreements between Luxembourg on the one side, and Germany, Belgium and France on the other have applied since 1 July 2022. Thus, the taxation of employees who are normally employed in Luxembourg and who work remotely from their home is maintained at 100% in Luxembourg if the following thresholds are not exceeded:
- Germany: maximum 19 teleworking days per year;
- France: maximum 34 teleworking days per year; and
- Belgium: maximum 34 teleworking days per year.
The salary in relation to all days worked outside Luxembourg will be taxable in the employee’s country of residence if the above thresholds are exceeded.
In addition, the Luxembourg government has proposed to:
- establish a new national legal framework to regulate the employment relationships of natural persons who provide services or work via digital platforms when their usual place of work is located within the territory of Luxembourg (Bill 8001);
clarify the system for extraordinary leave and introduce new types of extraordinary leave:
- one day out of a 12-month employment period on the grounds of force majeure relating to urgent family reasons in the case of a family member’s illness or accident making the immediate presence of the worker indispensable and certified by a doctor;
- five days out of a 12-month period of employment to provide personal care or support to a family member or a person living in the same household as the employee who is in need of significant care or support for a serious medical reason certified by a doctor (Bill 8016); and
- a right to extraordinary leave where a child is born to anybody recognised as an equivalent second parent under the applicable national legislation, as well as for the self-employed (Bill 8017); and
prohibit the use of ‘zero-hours’ contracts – employment contracts that include a particular clause on the working time to be performed by the employee which provides for a minimum of zero hours to be performed (Bill 8147). The bill states that:
- the minimum working time may not be set at zero hours; and
- if the working time is expressed in time intervals, the minimum working time may not be less than 10 hours.