How to avoid the sack when you are ill
The arrival of winter means an increase in sick leave. Unfortunately, many employees ignore employment laws when they are poorly, or hold various misconceptions, meaning that they are not protected when they are off sick and their employers can take advantage of this to dismiss them on the cheap.
- 1st day of illness:
a. Requirement to inform the employer of absence
When to inform: either in the morning when you get up, or in the office during working hours; as soon as you feel sick, you must let your employer know as soon as possible.
Our recommendation: Do not wait until you have seen your doctor to inform your employer; do it when the office opens or within half an hour of the time you are due for work.
What you must not do: wait several hours, or until you have seen your doctor, before notifying your employer.
Who to inform: in theory, your line manager and HR.
NB: your company’s rules of procedure or your employment contract may stipulate that certain people must be contacted. You must respect these provisions.
What you must not do: ask a fellow employee to let the employer know.
How to provide the information: the employee must be able to prove that notification has been given. The Luxembourg courts accept a simple list of the employee’s private telephone calls, or the testimony of a fellow employee or a friend/relative of the employee.
Our recommendation: notify your employer by email (using your private email server, or your work email server but including your private email address). This means you have written proof.
What you must not do: only give your employer or colleague verbal notification, or using your employer’s phone as, in practice, you will never have any proof.
b. The requirement for a doctor’s note
When to see a doctor: the law is rather unclear on the need for an employee to have a doctor’s note for the first day of absence. However, in practice many employers require one and the reality is that the courts sometimes back them. To be on the safe side, it is therefore essential that you go and see your doctor immediately on the first day of sickness, and have a note to cover this first day.
Popular misconception: many employees think that they do not need a doctor’s note for illness that only lasts one or two days. FALSE! The law is clear: employees must be able to justify any absence even if it is only for a few hours.
Some employers will have a degree of tolerance but we advise you to be very careful with this, and to make sure that this leeway is in writing and still applicable at the time of your absence.
Our recommendation: if in doubt, go by the book and visit your doctor on the first day of sickness.
Who to see: you are free to visit the doctor of your choice in your home country, whether a GP or a specialist if you already know what is wrong with you.
NB: the doctor who issues the note must be recognised by the CNS (National Health Fund) as being authorised to do so (this excludes the likes of physiotherapists, osteopaths, psychologists, naturopaths and homeopaths).
How to submit the doctor’s note: you do not have to submit a doctor’s note on the first day of sickness; the law gives you three days to do so (even if you are off for less than three days). Any clause in your employment contract or your company’s rules of procedure that reduces this time is illegal.
Our recommendation: as soon as you leave your doctor’s appointment, use your mobile phone to photograph or scan your doctor’s note and email it to your employer (preferably the HR department, otherwise your manager), mentioning that the original will be sent by recorded delivery the same day. Then go immediately to the nearest post office to send your employer the original note by registered post with acknowledgement of receipt (so that you have proof of the date that the note was sent and received).
- 3rd day of illness:
The law states that by midnight on the third day of illness (e.g., if you are sick on the Monday, the third day is the Wednesday), your employer must have received the doctor’s note.
The law affords leeway to cross-border employees, people who fall ill on holiday or are admitted to hospital as an emergency.
If you have sent the note by email and registered delivery on the first day, there should not be any problems and you have nothing more to do.
NB: this rule applies even if your note is valid for less than three days.
CNS requirements: At present, CNS bylaws afford a degree of leeway and do not require a doctor’s note to be produced for absences of less than three days. However, this tolerance only applies to the CNS and is not binding on your employer.
- First five days of illness:
You are not allowed to go out during this time, even if your doctor’s note states otherwise (the applicable rules on sick leave are those of Luxembourg, not the employee’s home country).
If you are not living at the address registered with the CNS whilst ill, the place at which you are staying during the sick leave must be mentioned on the doctor’s note.
As an exception, you are allowed to go out for medical appointments and food (provided the CNS is notified in advance: see https://cns.public.lu/fr/assure/vie-professionnelle/arret-de-travail/maladie/regime-sorties-malade.html).
- Subsequent days of illness
From the sixth day, you may go out between 10 a.m. and 12 noon, and from 2 p.m. to 6 p.m., not just in the week but also at the weekend. As an exception, you are also allowed to go out for medical appointments and food (provided the CNS is notified in advance.
You may not engage in any sporting activity (unless your GP says otherwise), visit bars or restaurants, or do anything that is not conducive to your recovery.
You must also remain in your declared place of residence outside of the stipulated hours for going out.
- Home checks: the CNS may send an inspector to your home to check that you are present during the hours that you are not permitted to go out. This check may be at the initiative of the CNS or at your employer’s request.
A calling card will be left in your letterbox if you are absent. You have the possibility to explain your absence on this card within three working days of the inspector’s visit. If appropriate, the CNS has the right to cancel your leave.
NB: technically, the CNS can arrange for checks in bordering countries.
- Checks by the employer: your employer may require a second medical opinion and instruct you to visit a doctor of its choice (at its own expense), who will provide an opinion solely on your ability/inability to work (the doctor does not have the right to disclose your condition).
You may ask for the designated GP to be replaced by a specialist (you may choose the specialist area).
If your employer’s designated doctor declares you fit for work, your employer may then call for a third opinion from another doctor of its choice, at its own expense. The third opinion will be applied.
- CMSS (Social Security Medical Inspectorate): during your absence from work, you will no doubt be called to appear before the CMSS. The CMSS will send a letter to your declared place of residence for your sick leave inviting you to a mandatory meeting.
NB: given the delivery times for cross-border post, the time between receiving the invitation and the appointment may be very short (24 to 48 hours).
Attendance at this meeting is mandatory or your sick leave may be cancelled. If it is not possible on medical grounds to get to the CMSS (if you are in hospital or unable to move), you must immediately call your GP so that he or she can write a note to confirm this. This note must be emailed on the same day to the CNS and CMSS. We nonetheless advise you to call the number shown in the letter as well, to given initial notification by telephone.
For more information, please contact ALEBA’s Legal Department (firstname.lastname@example.org or 223 228 1).