Mandatory Covid-Check at the workspace as of 15 January 2022
Following up on recent government announcements, the Bill of law No. 7924 was voted on 16 December 2021, amending the Law of 17 July 2020 on measures to combat Covid-19 (the “Law”) and comes into force from Friday 17 December 2021.
One of the main changes for employers relates to the implementation of a compulsory Covid-Check regime at the workplace, applicable between 15 January 2022 and 28 February 2022, including the following measures:
- In order to access the workplace, all employees must be able to present a Covid-Check certificate, i.e. either:
- a vaccination certificate with a QR code; or
- a certificate of recovery with a QR code; or
- a Covid-19 test certificate with a QR code (the validity of which is reduced to 48 hours for a PCR test and 24 hours for an antigen test); or
- a negative result of a self-diagnostic test carried out onsite for employees with a certificate contraindicating vaccination against Covid-19.
- Employers must control the employee’s Covid-Check certificates, or delegate such controls internally to one or several employees or to an external third party. The controller shall also verify the identity of the holders of the certificates by requesting a proof of identity.
- To facilitate controls, employers are authorised to set up a list of vaccinated or recovered employees who voluntarily agree to be referred thereto. This list may only refer to the name of the employees and the length of validity of their Covid-Check certificate. Access to the content of the list must be limited to the employer and the controller. This list must be deleted after 28 February 2022.
- Access to the employer’s premises will have to be denied to any employee who does not or cannot present a valid Covid-Check certificate.
In such a scenario, and subject to the employer’s agreement, the employee may take legal or conventional paid leave. Failing this, the employee will automatically lose his/her entitlements to remuneration proportionally to the hours not worked. The employee may not benefit from short-time work.
The employee concerned will maintain the social security affiliation during the unpaid period which will nevertheless be considered for employee’s seniority and entitlements to annual leave. A specific calculation is foreseen for the split of the social security contributions.
- The employee’s refusal or failure to present a valid Covid-Check certificate and his/her consequent absence from work does not constitute a valid reason for dismissal or a disciplinary sanction. Any such dismissal is null and void.
- Employers may decide to limit access to the premises by applying similar Covid-Check controls to external persons. Access to the public service and the continuity of the public service should remain guaranteed.
- The Labour and Mines Inspectorate (“ITM”) is competent to monitor the compliance of employees and employers with the new obligations set forth by the Law. Notably:
- any access to the workplace in violation of the obligation to present a valid Covid-Check certificate would be sanctioned with a fine of 500 to 1,000 euros to be paid by the employee;
- any failure of the employer to monitor this obligation would be sanctioned with a fine of 4,000 euros to be paid by the employer.
In case of any questions regarding this topic, please do not hesitate to get in touch with your usual contact at Elvinger Hoss Prussen or:
Pierre Elvinger, Partner | Tel: +352 446644 2112 | E-mail: pierreelvinger@elvingerhoss.lu
Florence Apostolou, Partner | Tel: +352 446644 2142 | E-mail: florenceapostolou@elvingerhoss.lu
Anouck Schneider, Counsel | Tel: +352 446644 2151 | E-mail: anouckschneider@elvingerhoss.lu
