international employment law firm alliance L&E Global

Luxembourg: Introduction of the Covid check in companies

  1. Introduction of the Covid Check in Companies

Since 19 October 2021, employers have the possibility to introduce the Covid check scheme within their company. It belongs to the employers to assess the “necessity” of introducing such a scheme in order to “protect the safety and health of the workers concerned”. 

Employers may decide to place the entire site under the Covid check scheme (access to the workplace), or limit it to certain parts of the premises or to events (meetings, conferences, etc.).

From 1st November 2021, employers in the HORECA sector will be obligated to implement the Covid check scheme.

  1. Consequences of the introduction of the Covid Check scheme

The concerned persons (employees, collaborators, customers, suppliers, visitors, etc.) are required to present a vaccination certificate, a recovery certificate or a negative test result in order to enter a Covid check area.

The QR code will have to be scanned each time a person enters a Covid check area. The scanning time will be considered as working time.

It should be noted that from 1st November 2021, only tests certified by a medical analysis laboratory that carried out the test or a health professional listed in Article 3 quater (3) of the Covid Law will be valid, so self-tests will no longer be accepted.

  1. Involvement of staff representatives

The introduction or modification of the Covid check scheme requires the involvement of the staff delegation:

  • in companies with less than 150 employees at the last elections: the staff delegation must be informed and consulted;
  • in companies with at least 150 employees at the last elections: the staff delegation has a power of co-decision.

In addition, any employer, regardless of its size, must also submit the introduction of the Covid check scheme to the prior opinion of the health and safety representative (“délégué à la sécurité et santé”).

  1. Notification of the Covid check scheme

Employers must notify the Covid check scheme to the Health Directorate (“Direction de la santé”) via an electronic form.

A new specific form will apply to companies and will be available online in the next few days. Only one notification should be required when the scheme is introduced.

The employer must also provide a visible notice. In addition, a procedure explaining clearly to employees the introduction and the modalities of the Covid check scheme would have to be established.

  1. Coverage of Covid Check test costs

The costs of the tests should be borne by the employees, who may indeed be vaccinated free of charge in order to avoid needing to be tested.

  1. Processing of personal data

The use of the Covid Check application, which has been modified on 11 October 2021, is not to be considered as processing personal data under the following conditions: employers must simply scan the QR codes without leaving any trace on any medium, material or file, and they must therefore avoid any recording of this medical data on any medium. Otherwise, there could be illegal processing of personal data.

  1. Sanction for refusal of the employee to comply with the Covid check

The provisions of the Labour Code entirely apply.

Therefore, the employer could decide to sanction the employee who refuses to comply with the Covid check scheme. The employee will also be considered to be in unjustified absence if telework is no longer allowed or possible (unless a request for statutory leave is accepted).

As in every case, the employer will have to analyse the situation on a case-by-case basis and take the appropriate and proportionate measures according to the situation of the company, the type of activity and the employee concerned.

If it is not possible to adapt the job (e.g. in an area not covered by the Covid check scheme), it would be appropriate to first send to the uncooperative employee a written warning reminding them of the Covid check rules and its health and safety benefits.

If the behaviour persists and the employee refuses to work, the employer could consider notifying a dismissal, even for gross misconduct. This will be all the more valid in the HORECA sector from 1st November 2021 in view of their obligation of the Covid check scheme.