For ALEBA, CovidCheck in companies must respect the fundamental rights of each employee
For ALEBA, CovidCheck in companies must respect the fundamental rights of each employee
Following the vote of the law on CovidCheck in companies on October 18, 2021, which will remain in force until December 18, ALEBA met the Director of ABBL and discussed with the Director of ACA, to find common ground on a common application of the new law on CovidCheck.
Indeed, this last law does not provide any information on how to apply it while respecting the fundamental rights of all employees, both those who can present a valid CovidCheck, and those who cannot.
Unfortunately, given the disparity in the structures of their members, the two employers’ associations have referred the application of this law to companies and staff delegations.
No common application agreement emerged from these discussions.
ALEBA, however, presents below its position on its vision of its applicability.
Thus, companies have the choice, and not the obligation, to implement the CovidCheck in their establishment from November 1, 2021. The law provides that the company setting up the CovidCheck must notify the National Health Directorate. CovidCheck areas must be clearly marked with signage.
The Horeca sector has no choice, and employees and customers alike have the obligation to submit to CovidCheck from November 1, 2021. Company canteens, belonging to the Horeca sector, must comply with the same rules and therefore the CovidCheck will be applied to these places.
Remember that there are three ways to comply with CovidCheck in Luxembourg:
– Tested: negative result after a PCR test of less than 72 hours or a certified rapid antigen test of less than 48 hours
– Cured: recovery from Covid19 less than 180 days
– Vaccinated: complete vaccination schedule (vaccines certified by WHO)
ALEBA is not opposed to CovidCheck in absolute terms, but it will contest its application if it gives rise to sanctions or discrimination against employees. Every employee who is discriminated against or sanctioned in any form will be supported by ALEBA.
Going to your workplace is a legal obligation! Access to their usual place of work MUST therefore be guaranteed to all employees, as well as to events requiring employee’s obligation to be there as part of their duties!
ALEBA notes that the CovidCheck, insofar as it is not compulsory and does not generate stigmatization, allows you to live again normally and find freedoms: taking the plane for your vacation, going to a concert, playing in an orchestra or singing in a choir, playing football, etc…, it’s up to everyone, and is enabled thanks to CovidCheck.
If ALEBA is therefore not against CovidCheck as such, so as to allow those who wish to remove the mask for very specific occasions in their company, at the choice of employees, it is out of the question to stigmatize them. For any event in which non-vaccinated employees are obliged to participate, the company must then, according to ALEBA, guarantee access to them in any form: PCR test paid for by the company during working hours, or hybrid video / face-to-face meetings, etc …
Given the compatibility issues with fundamental rights (medical confidentiality, right to privacy, right to work, GDPR), the application of this new law remains problematic, if not impossible in certain cases.
We also note an operational risk: although vaccination is the only known means of resuming a normal life, it does not cure the disease, nor especially prevent its spread, social distancing and barrier gestures remaining the only means today not to increase contaminations, especially in winter. By authorizing CovidCheck as soon as you enter the building and allowing employees free movement without barrier gestures, it is also taking the potential risk of creating a cluster in your own company.
On the other hand, preventing employees from working because of an invalid CovidCheck would amount to overburdening the employees who will be able to present a valid CovidCheck. This while the employer cannot know the number of employees in his company could not present a valid CovidCheck.
Examples of what would be acceptable:
- A company must allow free access to its employees, and preserve within it the measures of social distancing, wearing of masks, etc …
If meetings are organized under CovidCheck (subject to legality), then these meetings must automatically offer a participation solution via video or provide for certified tests at the company’s expense if the physical presence of employees is mandatory.
- As CovidCheck is automatically applied in the canteen, the purchase of a meal must however be made accessible, and a “take-out” formula set up for people who do not have CovidCheck.
What are the staff delegations’ rights?
For companies employing more than 150 employees: Co-decision with the delegation is required.
If your employer is considering the implementation of CovidCheck upon entry into the company, then we recommend that you oppose it.
For companies employing less than 150 employees: the delegation has only the right to information and consultation. The employer must inform and consult you on their willingness to set up the CovidCheck and its terms, the consultation takes place before the implementation.
In both cases, however, from November 1, access to the canteen via CovidCheck is not questionable. If the CovidCheck is applied, we recommend that you offer alternative solutions so that no employee is excluded from the advantage of having a canteen or is discriminated against. For example: Take-away or compensation by meal voucher.
If the employer imposes the CovidCheck or if there is a common desire to apply the CovidCheck, here is what the delegation must pay attention to, when setting up the latter:
- Areas and populations to be defined: The whole company, or only certain parts of the company, all the people who enter the zones, or only the external ones, in particular customers, visitors, etc …. Indeed, the Law makes it possible to limit the CovidCheck to only certain parts of the company, certain events or only to non-employees of the company.
- Attention to the respect of the GDPR: It is forbidden for the employer to establish lists of people already vaccinated (even with their consent), or of non-vaccinated people.
- Once the areas and populations have been defined, the application of CovidCheck must be systematic. People claiming to have been vaccinated cannot be exempted from having the CovidCheck applied at least once a day.
- It is also necessary to provide for the possibility of being tested anonymously (PCR, certified rapid antigen) at the expense of the employer and during working time. At the same time, staff delegates should care that the employer cannot have access to other medical information of the employee and in addition advise employees to keep their test costs which fall under these conditions.
- It is important to foresee the deadlines for the implementation, but also alternatives to CovidCheck, such as teleworking for example.
- It is also necessary to clearly foresee the consequences for the employee refusing to submit to CovidCheck. Please note, for ALEBA, the only legally conceivable consequences would be sending home with the maintenance of pay or telework. Any other consequence would be potentially discriminatory and potentially against the law. In any case, the employer cannot force the employee to take time off.
Dangerous analogy between safety helmets and shoes and CovidCheck
Some people want to make the dangerous analogy between the CovidCheck and the safety helmet/ and shoes on the construction site. You have to be careful and push the reasoning to the limit.
In fact, protection and prevention equipment on construction sites is a legal obligation to protect the health and safety of persons and compliance with this obligation does not exempt employees from respecting all other safety measures. While the CovidCheck in companies is not mandatory and is intended to exempt employees from other protective measures against Covid (social distancing, wearing a mask).
Site protection equipment is the responsibility of the employer. There is therefore no reason to leave the costs of testing (PCR, antigen) to be borne by employees within the framework of CovidCheck.
On construction sites, dressing and undressing time is considered working time. Therefore, in the context of CovidCheck, the testing time must be considered as working time (including the travel time to get to the test location).
On construction sites, if the employee refuses to wear protective equipment, he is sent home without pay, because there are no alternatives to the use of protective equipment. As part of CovidCheck, alternatives exist both for on-site work (wearing a mask, social distancing), and for remote work (telework).
On this basis, there is therefore no need to send an employee who refuses to submit to CovidCheck, without pay at home.
Protection and prevention equipment on construction sites is considered as clothing (helmets, shoes) which does not affect the physical integrity of the employee. As for the CovidCheck (test, vaccination), it affects the physical integrity of the employee.
In conclusion, ALEBA asks employers not to apply CovidCheck upon entering the company, but to clearly mark CovidCheck areas with Staff Delegations, so as to respect the fundamental rights of all employees.
Press release, November 2nd, 2021