Two new Luxembourg laws of 29 July 2023 and 15 August 2023, which together transpose into national law Directive 2019/1158 of 20 June 2019 on work-life balance for parents and carers (the “Laws”) have finally been published in the Luxembourg Official Gazette (Journal Officiel). They entered into force on 22 and 21 August 2023 respectively.
This initiative followed the observation that work-life balance remains a considerable challenge for many parents and workers with caring responsibilities, in particular because of the increasing prevalence of extended working hours and changing work schedules, which has a negative impact, in particular, on women in employment. Consequently, women tend to be underrepresented in the labour market. Based on this observation, the purpose of the Law is threefold:
- extending the right to paternity leave;
- redesigning parental leave entitlements;
- introducing the possibility for parents to request flexible working arrangements to accommodate their work patterns and remain in the labour market.
The Laws also introduce two new extraordinary leaves.
Extension of the scope of application of the right to paternity leave
Before the entry into force of the Laws, the Luxembourg Labour Code provided for the right to an extraordinary leave of 10 days for the father in the event of birth of a child. The Laws extend the right to paternity leave to equivalent second parents recognised as such by national law. The amendment is intended to take into account the situation of same-sex couples, allowing persons who are recognised as equivalent second parents or co-parents to benefit from paternity leave in the event of birth of a child, outside of any adoption procedure.
The days of leave can be split for a full-time employee. For part-time employees, the duration of the paternity leave is prorated to the weekly working time of the employee. Paternity leave is limited to one leave per employee and per child, which means that in the event of multiple births, the father or equivalent second parent will be entitled to one leave for each child.
It is worth mentioning that before the entry into force of the Laws, the Luxembourg Labour Code provided that the employer must be informed of the expected dates of the paternity leave two months in advance. If this two-month notice period was not respected, the paternity leave could be reduced to two days at the discretion of the employer. In this regard, the Laws introduce the following new features:
- In order not to prejudice employees who are faced with the premature birth of a child (and who are unable to meet the two-month notice period), the two-month notice period does not apply if the birth occurs two months before the expected date.
- The possibility for the employer to reduce the paternity leave to two days in case of failure to comply with the two-month notice period is removed. In such a case, the leave must be taken all at once and immediately after the birth of the child, unless the employer and the employee agree on a flexible solution, allowing the employee to take the leave in full or in part at a later date.
The Laws finally extend the right to paternity leave to self-employed workers provided that they can prove registration with a public compulsory insurance for at least six months.
The new provisions will apply for paternity leaves taken for a child born after their entry into force, i.e. after 22 August 2023.
Adjustment of the right to parental leave
The Laws introduce the following changes to the Luxembourg Labour Code with respect to parental leave:
- With regard to requests for a first split parental leave, the decision of the employer refusing such a request must be motivated in writing.
- Regarding the possibility for the employer to postpone a second full-time parental leave requested by a parent, the postponement decision must also be provided in writing. Before any postponement decision of the second parental leave is taken, the employer shall offer to the employee, to the extent possible, flexible ways of taking parental leave (i.e. either split parental leave or part-time parental leave).
Possibility for parents to request flexible working arrangements
Before the entry into force of the Laws, the only provision of the Luxembourg Labour Code that allowed a parent to request an adjustment of his/her working hours was Article L.234-47(11). This Article applies to employees returning to work at the end of a parental leave. These employees are entitled to request a meeting with their employer in order to request an adjustment of their working hours, for a maximum period of one year.
The Laws now also provide for the possibility for any employee with at least six months' continuous service to request a meeting with his/her employer in order to ask for the introduction of flexible working arrangements. Employees concerned are those who are:
- the parent of a child under the age of nine, or
- who provide personal care or assistance to a family member (son, daughter, mother, father, spouse or partner) or to a person living in the same household who requires considerable care or assistance for serious medical reasons.
Flexible working arrangements refer, for example, to teleworking, flexible working hours or a reduction in working hours. The measures may not exceed one year. The employer must provide a response to the employee within one month, taking into account the needs of both parties. Any decision to refuse or postpone the request must be motivated in writing, by registered letter with acknowledgement of receipt.
The employee is entitled to return to the original working arrangement at the end of the period agreed between the parties, or before the end of said period, in the event of a change in circumstances. In the latter case, the employer must provide a response to the employee within one month, taking into account the needs of both parties.
The Laws provide for a fine of between EUR 251 and EUR 2,500 for employers who do not comply with the above requirements.
New extraordinary leaves
The Laws introduce two new extraordinary leaves:
- a one-day leave over a twelve-month employment period for reasons of force majeure related to urgent family reasons in case of illness or accident making the immediate presence of the employee indispensable;
- a five-day leave over a twelve-month employment period to provide personal care or assistance to a family member (son, daughter, mother, father, spouse or partner) or a person living in the same household who requires considerable care or assistance for serious medical reasons. The health condition of the person concerned must be certified by a medical practitioner.
The duration of both extraordinary leaves can be split for full time workers, and is prorated for part-time workers.
Half of the salaries paid by the employer to the employee during these extraordinary leaves will be borne by the State budget, up to five times the social minimum wage for unskilled workers (i.e. EUR 12,541.20.- at index 921.40), provided that the employer files a request online within six months.
Protection against dismissal and retaliation
The employer is not entitled to terminate an employee’s employment contract based on the employee requesting or benefiting from an extraordinary leave or from flexible working arrangements. Such dismissal will be null and void.
In addition, an employee shall not be subject to retaliation or less favourable treatment for having benefited from or asking to benefit from an extraordinary leave or from flexible working arrangements. The employer will also have to maintain the employee’s position, or at least a similar position, during the entire duration of the extraordinary leave and/or the flexible working arrangements.
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