Reform of Extraordinary Leave for Employees in Luxembourg: Achieving a Better Work-Life Balance for Employees and Taking Better Account of the Current Realities of Our Society

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Reform of Extraordinary Leave for Employees in Luxembourg: Achieving a Better Work-Life Balance for Employees and Taking Better Account of the Current Realities of Our Society

By Philippe Schmit and Virginie Roger-Schroeder*


Introduction


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 provides a number of reductions with respect to days of leave granted in the event of marriage or a declaration of partnership for those directly concerned and their parents. The leave due in the event of marriage is reduced by oneā€‘half to 3 days[1] (as opposed to 6 days formerly) in the case of the marriage of an employee and to 1 day[2] (as opposed to 2 days formerly) in the case of a child's marriage. The leave due in the case of an employee's declaration of partnership is reduced to 1 day[3] (as opposed to 6 days formerly).
  • The number of days of leave a father is entitled to be granted in the event of the birth of a child is 10[4] consecutive days (as opposed to 2 days formerly). The same will apply to the leave to which parents are entitled in the event of adoption.

 

The Law also readjusts the procedures[5] 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.

 

  • The duration of the leave granted in the event of a private move by the employee remains fixed at 2 days; this leave will however only be granted once every three years in order to protect employers from abusive demands in this context.

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
[6].

 

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)[7].


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:

  • 12 days for each child under 4 years of age;
  • 18 days for each child between the ages of 4 and 13 years;
  • 5 days for each child between the ages of 13 and 18 years (but for this latter age range only in case of hospitalisation).

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[8] (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[9]. The explanatory memorandum makes it clear that the aim is not to disadvantage women who are unwilling or unable to breastfeed their children.

 

Conclusion


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.


 

 

[1]Article L.233-16 of the Labour Code, first paragraph, point 6.

[2] Article L.233-16 of the Labour Code, first paragraph, point 3.

[3] Article L.233-16 of the Labour Code, first paragraph, point 6.

[4] Article L.233-16 of the Labour Code, first paragraph, point 2.

[5] Article L.233-16 of the Labour Code, last paragraph.

[6] Article L.234-51 of the Labour Code, first paragraph.

[7] Article L.234-52 of the Labour Code, last paragraph.

[8] Article L.332-2 of the Labour Code.

[9] 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 philippe.schmit@arendt.com and Mrs. Roger-Schroeder can be contacted at virginie.roger@arendt.com.

 

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Luxembourg,
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Thursday, April 26, 2018
Employee Benefits / Retirement Schemes / Welfare Benefits, Employment / Labor Law