The main challenge in respect of the reform of extraordinary leave was to ensure that a balance was maintained between employees' wishes for leave and employers' organisational constraints, particularly in terms of the organisation of working time.
The main changes consist of a readjustment of the amount of extraordinary leave for personal reasons and the procedures for taking certain categories of this leave, increased flexibility as regards special leave for family reasons and a general extension of post-partum maternity leave (breastfeeding leave).
Readjustment of the amount of extraordinary leave for personal reasons
The readjustment has the effect of reducing the number of days allocated for certain events and increasing the number of days awarded for other events:
The Law also readjusts the procedures for taking this leave: the father-to-be concerned must inform the employer within a 2-month notice period prior to the foreseeable dates of the paternity leave. If the employee does not comply with such notice period, the employer may grant only 2 days. Paternity leave may be split and in such a case it must be taken within 2 months after the child’s birth. In the event that the employee and the employer do not reach an agreement on the split, the paternity leave must be taken in its entirety in one go immediately after the birth.
The employee is entitled to continued remuneration during paternity leave while the employer is only entitled to reimbursement of advance wages for days of leave in excess of the 2-day minimum.
It should be noted that even though the Law refers to the term "father", it covers the term "parent" in the broadest sense of the term and without distinction as regards same-sex couples.
Increased number of days of special leave for family reasons and increased flexibility
Special leave for family reasons will be granted to any employee with a dependent child who, in the event of serious illness, accident or other compelling health reasons, requires the presence of one of his or her parents.
Whereas the former regime granted 2 days per year, up to the child's 15th year, the current Law provides for the introduction of a quota system for days of leave which can be used for several years and the number of which varies according to the age group of the child concerned (it is more substantial during the first 4 years of the child's life).
The number of days of special leave for family reasonshas been increased from 2 days per child (provided that the child is under 15 years of age) and per year, which were lost in the event of non-use during a given calendar year, to 35 days per child, spread over the first 18 years of each child and divided as follows:
The new family leave system is better adapted to the needs of parents, which vary considerably according to the age of the child concerned. Parents now have indeed greater flexibility to use leave days for family reasons, since the predefined quota for each age group can be used at any time within the age group in question. In its comments on the draft law, the Chamber of Commerce expressed criticism concerning, in particular, the establishment of this quota, considering that this flexibility in the use of leave will be to the detriment of employers since, in general, the management of a quota of leave over several years (resulting in the possibility of postponement in the age bracket considered) necessarily constitutes an additional administrative burden for companies.
General extension of maternity leave
With regard to maternity leave, the Law extends this leave to 12 weeks (as opposed to 8 formerly) regardless of factors such as breastfeeding, multiple births or premature birth (under the former regime, these conditions alone allowed for extended leave of 12 weeks in total). Adoption leave is also extended to 12 weeks (formerly 8) in the event of adoption of a child under 12 years of age. The explanatory memorandum makes it clear that the aim is not to disadvantage women who are unwilling or unable to breastfeed their children.
In conclusion, by granting for a certain number of events more leave than is the case under current law, some provisions included in certain collective bargaining agreements may now turn out to be less favourable than the current Law, in which case employers will have to ensure that the provisions of the Law are applied. As a consequence, it is not to be excluded that this new state of affairs could lead to demands for the renegotiation of certain collective agreements.
Article L.233-16 of the Labour Code, first paragraph, point 6.
 Article L.233-16 of the Labour Code, first paragraph, point 3.
 Article L.233-16 of the Labour Code, first paragraph, point 6.
 Article L.233-16 of the Labour Code, first paragraph, point 2.
 Article L.233-16 of the Labour Code, last paragraph.
 Article L.234-51 of the Labour Code, first paragraph.
 Article L.234-52 of the Labour Code, last paragraph.
 Article L.332-2 of the Labour Code.
 Article L.234-56 of the Labour Code, first paragraph, point 1.
[*] Philippe Schmit is a Partner and Virginie Roger-Schroeder is an Associate in the Employment Law, Pensions & Benefits Practice Group in the Luxembourg office of Arendt & Medernach S.A. Mr. Schmit can be contacted at firstname.lastname@example.org and Mrs. Roger-Schroeder can be contacted at email@example.com.