Luxembourg: 3G Scheme is Mandatory at the Workplace

The Covid law of 17 July 2020, as amended by the law of 16 December 2021 and the law of 11 January 2022 (hereafter “the Law”), introduced the compulsory “3G” (vaccinated/recovered/tested) scheme at the workplace. The 3G Scheme is now mandatory at the workplace, as of 15 January 2022.

1. Control of the certificate:

Employees, temporary worker, public agents, self-employed persons, as well as trainees, apprentices and pupils and students occupied during school holidays must be able to present at their place of work (teleworking is not considered as a workplace) one of the following certificates:

• certificate of vaccination;
• certificate of recovery;
• certificate of 48-hour PCR negative or 24-hour rapid antigenic test;
• certificate of contra-indication to Covid-19 vaccination with negative test (PCR, antigenic or autotest performed on site).

The employer has no legal obligation to cover the costs of the tests.

No notification of the scheme to the Health Directorate (“Direction de la Santé”) is required.

The employer may decide that persons from outside the company (customers, suppliers, visitors, etc.) are also subject to the 3G scheme for all or part of the premises.

2. Organisation of the daily control of the certificate:

The control of the certificate must be done by the employer or another person appointed by the employer.

Verification of identity: the employer (or the person appointed by the employer) must ensure the identity of the person who presents the certificate by providing an identity document (any official document with a photograph).

The Labour and Mines Inspectorate (“Inspection du travail et des Mines”, ITM) is responsible for monitoring compliance with the obligations of the employer and the employees.

In the event of non-compliance with the control obligation, the employer may be obliged to pay an administrative fine of up to 4,000 euros and the employee a criminal fine of between 500 and 1,000 euros if he/she enters the workplace without a valid certificate.

Introducing a list: the employer has the option of having a list of vaccinated or recovered employees under the following conditions:

• voluntary registration in the list;
• content of the list limited to the name of the employee and the period of validity of the certificate;
• possibility of requesting the removal from the list at any time and without justification;
• possibility to delegate the management of the list;
• the list’s validity is limited to the duration of the Law (28 February 2022 inclusive) and the list must be destroyed by that date.

3. If the employee refuses to present a certificate or is unable to present a valid certificate:

The employee will not be able to access his/her workplace.

The employee will be able to take statutory or contractual leave with the employer’s agreement.

The employer may adapt the employee’s workstation, e.g. by requiring him/her to telework, if this is still allowed and possible.

If no agreement is reached or if the employee does not wish to take days off, he/she loses part of the corresponding remuneration.

The employment contract is maintained and the non-submission of a valid certificate as well as the resulting absence from work is not a reason for dismissal or any other sanction. Otherwise, a dismissal is null and void.

4. Impact of unpaid absence on social security and on the employment contract:

Unpaid absence does not result in the employee’s disaffiliation from social security.

Social security contributions are not due, except for pension insurance (employer’s and employee’s portion) up to a maximum of 64 hours.

The period of unpaid absence is assimilated to a period of actual work, in particular for the calculation of days of leave and for the rights related to seniority (e.g.: a severance payment).

Key Action Points for Human Resources and In-house Counsel

Employers should, in particular, provide for:

• a declaration of consent to be signed by employees wishing to register on the list of vaccinated/recovered persons;
• a declaration of confidentiality to be signed by the person in charge of the control;
• a personal data outsourcing contract to be signed, if necessary, by the external service provider; and
• an internal procedure to be communicated to all staff and ensure that it is strictly observed.