A practical guide to parental leave (Part I)
Before the start of parental leave
This article is the first in a series of three articles looking at parental leave from a practical point of view. We will address practical issues relating to parental leave that arise before submitting a request, during parental leave, at the end of parental leave and when employees return to work (or not).
What is parental leave? Parental leave is a long-term leave of absence during which workers (whether employed or self-employed) are entitled to look after their child under the age of 6 (or 12 in the case of adoption). Parental leave guarantees the worker a replacement income during his/her absence from work, as well as the possibility to return to his/her position once the leave period has ended.
1.“Am I entitled to parental leave?”
- Every parent is entitled to parental leave, provided that they personally meet the legal conditions. There are therefore two parental leave allowances per child. NB: the first parental leave must be taken immediately after maternity leave (or adoption leave in the case of adoption) or the birth of a child.
The law makes a distinction between the “first parental leave” and the “second parental leave”. The first parental leave must be taken immediately after maternity leave (or, if no maternity leave is taken, on the first day of the third week after the birth) and the second parental leave must be taken before the child’s sixth birthday. Since 2016, it has been possible for both parental leave periods to be taken simultaneously (even in the case of full-time parental leave). Requests need only specify which parent is taking the first parental leave and which is taking the second (if this is not specified, Social Security will consider the first parental leave to be taken by the parent whose surname comes first in alphabetical order).
For a lone parent living with the child for which parental leave is due, it is not compulsory for the parental leave to start immediately after maternity leave, and parental leave may be taken up to the child’s sixth birthday.
- NB: parental leave entitlement is not transferable between parents: each parent must take their own parental leave and may not give their entitlement to the other parent (therefore, one parent cannot take two periods of parental leave for the same child, even if the other parent is not taking parental leave).
- Legal conditions:
- Being the parent of a child under 6 (or 12 in the case of adoption).
- Being a member of staff, apprentice, civil servant, employee or government worker, self-employed worker or a freelance when the child is born (or on the adoption date), when the leave request is submitted, for the 12 months preceding the start of the parental leave and during the parental leave period.
- Being registered with Social Security when the child is born or arrives in the home (for adopted children), as well as during the 12 months preceding the start of the parental leave (one or more breaks up to a maximum of 7 days in total are nevertheless permitted).
- The applicant must remain employed for the duration of the parental leave (which means that for workers on fixed-term contracts, the duration of the parental leave must not extend beyond the end of the fixed-term contract).
- The employee must work at least 10 hours per week (average calculated over the past year) to be able to request full-time parental leave. For part-time parental leave, the employee must work at least 20 hours per week. For split parental leave, the employee must have worked full-time during the year preceding the parental leave.
- Employees may not submit a parental leave request during their probation period. As such, they must wait until the end of the probation period to submit a request.
- Apprentices may only apply for full-time or part-time parental leave schemes (and not split parental leave).
- Multiple births and adoptions: as the right to parental leave applies for all children, please contact the Caisse pour l’Avenir des Enfants (Children’s Future Fund – CAE) directly to manage the timing of parental leave periods.
2. How to request parental leave
- Employees must submit their parental leave requests to their employer:
- No later than two months before the start of the maternity leave for the first parental leave.
- No later than four months before the start of the parental leave for the second parental leave.
- The request must be sent by registered letter with acknowledgment of receipt to the employer.
- In the case of split parental leave, the employee must provide the employer with a proposed leave plan, which must be approved by the employer and submitted to the CAE.
- The employee must send the following form http://cae.public.lu/content/dam/cae/fr/formulaires/interactifs/indemnite-conge-parental-fr-1.pdf, completed and certified by the employer, to the CAE, within 15 days of notifying the employer of the parental leave request for the first parental leave and within 15 days of receiving the employer’s response for the second parental leave (if no response is received from the employer within one fortnight of the end of a four-week period following submission of the request).
- The CAE will then contact the applicant to obtain any missing supporting evidence.
3. The employer’s handling of parental leave requests
- Regarding the terms of the parental leave (whether full time, part time or split): the employer may reject the employee’s part-time or split parental leave request. The employer may not, however, reject full-time parental leave requests.
In the event that the employer rejects the parental leave on the basis of it being split or part-time, or in the case of a disagreement regarding the plan for split parental leave (see below), the employee can still change his/her request to a full-time parental leave request.
- For split parental leave: a parental leave plan must be jointly agreed by the employer and the employee within four weeks of the parental leave request being submitted. Once it has been adopted, the only changes possible will be adjustments to working hour arrangements or months of leave.
If the employer rejects the parental leave plan proposed, he/she must invite the employee to attend a meeting by registered letter with acknowledgment of receipt no later than two weeks after receiving the parental leave request and must provide written justification for rejecting the plan and put forward an alternative plan or a different type of parental leave.
- Deferring parental leave:
- For the first parental leave (leave immediately following maternity leave), the employer cannot request a deferral.
- For the second parental leave, the employer may request a two-month deferral in the following conditions:
- In the event that numerous parental leave requests are submitted at the same time and would disrupt the organisation of the business;
- If it is not possible to arrange a replacement for the employee in four months owing to the specific nature of his/her role or a workforce shortage in the business division concerned;
- If the employee applying for leave is a senior executive who is actively involved in the management of the company;
- In the case of seasonal work, the parental leave may be deferred until the end of the season;
- If the company has fewer than 15 employees (in this case, it may even be deferred by 6 months).
- In the case of deferral, the employer must propose a deferral date and inform the employee representative body. If the employee or the employee representative body consider the deferral request to be unjustified, they may refer the matter to the Inspectorate of Labour and Mines (Inspection du Travail et des Mines – ITM) by registered letter with acknowledgment of receipt. If no agreement can be reached, the employer or the employee may refer the matter to the President of the Labour Court ruling on summary proceedings (we would strongly encourage you to contact us).
- It is not possible to defer parental leave in the following cases:
- Once the employer has agreed to the parental leave;
- If the employer has not responded to the employee’s request within four weeks of the parental leave request being submitted;
- When the employee works for more than one employer and they disagree on the deferral;
- If the child suffers an illness or has an accident requiring the parent to be at his/her side (upon presentation of a medical certificate) or the child has behavioural or school-related issues (upon presentation of a school certificate);
- If the employee has proposed a deferral of more than two months.
- Protection of employees requesting parental leave: the employee is protected against dismissal with notice as of the last day of the parental leave request submission period. As of this date, the employer is no longer able to issue notice of dismissal or summon an employee to a preliminary meeting.
E.g. On 1 February, an employee submits a request for full-time parental leave starting on 1 July of the same year. The employee is only protected against dismissal as of 28 February.
If the employer issues notice of dismissal to an employee protected against dismissal, the employee can request the dismissal to be declared invalid by the President of the Labour Court within 15 days of notification of dismissal.
Please note that our legal department can be contacted to answer any questions you may have at firstname.lastname@example.org or by calling 223 228 1.
By Matthias Lindauer, Legal Advisor