COVID-19: Strategy for lifting confinement from a Luxembourg labour law viewpoint

Luxembourg is planning to lift the lockdown and to start people movement and work again, in stages. The coronavirus is, however, still present. Companies need to prepare their strategy for lifting confinement, including implementing all sanitary measures (such as social distancing, washing of hands, cleaning the workplace contact areas, wearing of masks and gloves etc.) that are adapted to their activity. 

The Luxembourg Government has distributed masks to companies and strongly advises to continue teleworking if and where possible. Through the Grand Ducal Regulation dated 17 April 2020 it has also introduced a series of occupational health and safety measures as part of the fight against Covid-19 applicable to both employers and employees as detailed below. 

Employers’ duty of care and risk assessment

Employers must take all necessary and appropriate measures to ensure the health and safety of their employees (Articles L.312-1 et seq. of the Labour Code). This general rule applies also in the current exceptional circumstances of the Covid-19 outbreak. 

Employers must assess the risks to health and safety in relation to the Covid-19 outbreak as well as determine and implement all protective measures to avoid those risks. A regular review of the risk assessment is mandatory and, in any case, a review must be performed by employers at each change relating to the exceptional circumstances of the Covid-19 outbreak.

Unless there is undue financial burden on the employer, the following shall notably be implemented: 

• reduce/limit the number of employees exposed or likely to be exposed to the risks resulting from the Covid-19 outbreak;
• provide appropriate instructions, information and training of employees on the identified risks, the precautions to be taken, the wearing and use of protective equipment/clothing and the hygiene requirements;
• posting signs indicating the risks and preventive measures;
• arrange the working environment/workspace/workstations;
• provide employees with collective and individual protective equipment and ensure that the equipment is effectively/appropriately used;
• ensure that the protective equipment is effectively placed in the indicated area, stored separately (where applicable) and cleaned/destroyed after each use;
• provide employees with appropriate sanitary facilities, access to water, soap and disposable paper towels and/or disinfectant solution (i.e. hydro-alcoholic gel);
• ensure that employees maintain an appropriate physical distance or wear a mask (covering nose and mouth), and any other necessary individual equipment;
• ensure that the premises, floors and all work surfaces are regularly cleaned/disinfected.

Appropriate measures must also be taken and adequate information must be given to any other undertaking and its employees operating in the workplace/premises.

In the case where several undertakings share the same workplace, cooperation and coordination between those undertakings is essential to prevent occupational risks.

The implementation of the above rules is subject to the control of the Labour and Mines Inspectorate (ITM- Inspection du travail et des mines) and the Occupational Health and Environment Division of the Health Ministry. In the event of a breach, companies may be subject to administrative and criminal sanctions (fines and imprisonment under certain circumstances).

On a general note, cooperation with the employees’ representatives is essential (where applicable). Employers shall inform the staff delegation about the identified risks to health and safety as well as the protection and prevention measures to be taken and, if necessary, the protection material to be used (Article L.414-2(5) of the Labour Code). Employers shall further inform and consult the health and safety delegate, notably with regard to the assessment of risks for occupational health and safety, the measures of protection to be taken, and any action that may have a substantial impact on health and safety (Article L.414-14(7) of the Labour Code).

Employees’ rights and obligations

Employees are subject to general health and safety obligations (Article L-313-1 of the Labour Code).

Pursuant to the Grand Ducal Regulation dated 17 April 2020 introducing a series of occupational health and safety measures as part of the fight against Covid-19, employees must: 

• use any protective equipment provided in a proper manner and comply with all required hygiene measures; and
• immediately report to the employer and to the health and safety delegate any situation at work presenting a serious and immediate danger to health and safety, should they have reasonable grounds to believe so.

Without prejudice to Article L. 312-4 of the Labour Code, in the event of a serious, immediate and unavoidable danger, an employee may leave his/her workstation or the dangerous area without being sanctioned. Any termination on those grounds will be deemed abusive.