The CovidCheck will be applied in the workplace from January 15th, 2022. Every employee will then have to be able to present a valid certificate by showing:
- Either a full vaccination schedule,
- Either a certificate of cure
- Or a negative PCR (less than 48 hours) or antigenic (less than 24 hours) test.
The law offers the employer the possibility to decide to limit access to persons outside the company to all or part of its premises.
- What about people who have only received one dose by 15 January?
People who have started to be vaccinated against Covid-19 (since 16 December 2021, the date of the vote on the law) and who have not yet received their second dose will be able to benefit from 20 free certified antigenic tests from 14 January until 28 February next.
These certified tests will be carried out with the help of the army in five screening centers and will allow these workers to go to their workplace when the CovidCheck comes into force and will be valid for 24 hours.
The persons concerned (residents or border workers) will have to make an appointment via this website:
- What happens in case of an invalid CovidCheck?
The law provides that in case of non-presentation by the employee of a valid CovidCheck, access to the workplace must be refused.
On this occasion, the employee can then apply to be put on statutory leave. However, the employer may refuse this request. If this is the case, the employee will be sent home without being paid (exemption from work without pay). In addition, the employee cannot be placed on short time working.
Unlike unpaid leave, the usual social rights are maintained (leave, seniority, pension, social security) for the unpaid days of exemption from work due to absence from a valid CovidCheck.
Concerning the possibility to telework, it is like for the legal leave, subject to the approval of the employer. The employee can request it but cannot impose it.
Failure to submit a valid CovidCheck can in no way lead to dismissal or even to any disciplinary sanction.
Finally, it should be noted that the employee does not have the possibility to exercise his right of withdrawal in the context of the application of the CovidCheck.
- Is a negative test without a QR code acceptable?
The law requires the presence of a QR code for test verification. Indeed, the CovidCheck application allows to verify the authenticity of the tests thanks to this European QR code. It is therefore imperative to be tested by establishments that provide a certification that meets European requirements.
- What happens if my CovidCheck expires during the day?
If the CovidCheck expires during the working day, the employee must leave his or her job immediately. It is an offence to remain at work despite the expiry date and may be punished for this. This can also be grounds for dismissal.
It is important to note that the test carried out should cover working hours to avoid this type of incident.
- Which regime (3G, 2G+ or 2G) applies to the canteen?
As the canteens are part of the HORECA sector, the 2G+ regime is applicable. In this case, a certificate of vaccination or recovery and a self-test or a negative PCR test (less than 48 hours) or antigen test (less than 24 hours) must be presented.
An employee who is in possession of:
- A vaccination certificate issued 180 days or less ago,
- A certificate for the booster vaccination,
- A certificate of recovery for a period of 180 days.
- The costs of testing
The law of December 16th, 2021 imposing CovidCheck in companies was silent on the issue of covering the costs of testing. However, this law modified the law of 17 July 2020, which had already imposed CovidCheck in the health sector for several months. Article 3 (1) of the law of 17 July 2020 requires the
employer, not the employee, to cover the costs for testing. It therefore seems logical that the costs of testing in other sectors should also be borne by employers.
We recommend that employees keep the receipts for testing costs and submit them to their employers for reimbursement of expenses in accordance with the procedures in force in their companies. In the event of a refusal to reimburse, we invite employees to contact us to study the follow-up to be given to these refusals.
- Testing time
The employee is at the employer’s disposal while waiting for and during the test. Therefore, the time required for this purpose must be considered as working time.
The employee should not be penalized if the arrangements chosen by the employer lengthen the time needed to carry out the check in practice (e.g. only one employee is responsible for carrying out the check of a hundred people in practice at the same time at 8 a.m.).
The employee should also not be prejudiced by possible malfunctions during the control. The employer should put in place alternative solutions: use of another RGPD-compliant foreign application to carry out the check, wearing a mask on the company premises and respecting social distances, authorizing teleworking, etc.
This unpaid period is treated as a period of actual work for the purposes of determining the duration of paid leave and for the legal or contractual rights acquired by the employee in respect of seniority.
It should be noted that this period is neutralized in relation to the calculation of unemployment benefit and compensatory allowance for reclassification.
The employee is also entitled to maintain his/her rights to health care benefits.
With regard to compulsory insurance, the employee continues to contribute up to a threshold of 64 hours per month. If this threshold is not reached because of unpaid hours, the employer’s and employee’s shares of the pension insurance contributions for the hours missing to reach the threshold are paid by the employer. Thereafter, the employer may apply to recover these paid shares for a maximum period of six months.
- What does the law provide?
The new article 3 septies of the law of 17 July 2020 provides that the employer may define areas in the company’s premises that will be accessible to people outside the company (suppliers, customers, consultants, etc.) upon presentation of a valid CovidCheck. These areas may then be exempted by the employer from the obligation to wear a mask and social distancing (conversely, the employer may decide to continue to impose these obligations in these areas).
Areas accessible to people outside the company without presenting a valid CovidCheck will remain subject to the obligation to wear a mask and to respect social distancing.
- Our recommendations
In light of scientific studies that indicate that vaccination limits, but does not prevent, the transmission of the disease, we recommend that our members and delegates maintain the following company-wide measures:
- Apply the principles of “social distancing”: employees are asked to keep a distance of at least two meters between each other (offices, dining areas, lifts etc….).
- If a distance of two meters cannot be respected, masks or any other device that effectively covers the nose and mouth must be worn. Wearing them is compulsory in all circumstances for activities involving the public.
- Regularly disinfect hands or wash hands with soap and water, at least before starting and at the end of the service.
- Cough or sneeze into your elbow or into a tissue.
- Use single-use tissues and dispose of them in a non-hand operated waste bin.
- Greeting without shaking hands.
- Avoid, as far as possible, the organization of physical meetings and prefer audio/visual conferencing.
- Air out offices regularly.
- Do not share materials or equipment (tablets, pens, communication devices, etc.).
- Limit outings and travel to what is necessary.
(Source: Directorate of Health)
There is no compulsory vaccine in Luxembourg (although a national vaccination scheme exists and is even strongly recommended by the public health authorities).
The same applies to Covid-19. As long as the employee has at least one alternative to vaccination for access to the workplace (there are even two: certificate of recovery or presentation of a negative PCR or antigenic test), it follows that CovidCheck does not imply a forced vaccination.
- According to the CNPD, who can verify the authenticity of the CovidCheck certificate?
Article 3septies of the amended Act of 17 July 2020 on measures to combat the pandemic Covid-19 provides that the obligation to check the validity of the certificate must be carried out by the employer or another person designated by them, including a service provider external to the company. Recommendation: that they be subject to a specific duty of confidentiality towards the employer and their colleagues.
- Under what conditions can the employer keep a list of those who have been vaccinated or cured, so that they do not have to be checked daily?
The Covid law does allow the employer or the head of the administration to keep a list of his vaccinated or recovered employees. But inclusion in this list must be voluntary. The employee must give explicit consent. The employer must always allow employees who do not wish to be on the list to present their certificate each time they go to work, without any negative consequences for them.
The only purpose of the list should be to facilitate the CovidCheck checks. It may not contain any information other than the names of those vaccinated or reinstated and the period of validity of the certificates. Only the operator, organizer or persons responsible for maintaining the list should have access to its contents.
Registrants may request that their names be removed “at any time, without any explanation or justification”.
For the time being, the list is valid until 28 February 2022. With no change in the law, it must be destroyed by that date.
Employers may not keep a copy of such documents for this purpose under any circumstances.
- Do external service providers working for a company have to be included in the list?
The law does not provide for the case of external service providers. If in practice they only work at one location (at the client’s premises and not at their employer’s), there is no reason why they should be included on the list of their employer, who is in any case not entitled to pass on the contents – even in part – to his client.
- Can the validity of a certificate be linked to the entry badge?
Yes, under certain strict conditions. As with the list, the employees or agents concerned must have given their prior consent to this processing.
Can the employer ask the employee for identification to verify that he or she is the holder of the certificate?
Yes, the notion of “identity document” here is broad and not limited to an identity card or a passport but with a photograph of the person concerned.
- Can the employer check his employees remotely?
A check on the validity of the certificate is not necessary when the employee is teleworking.
- What about checking visitors?
The law requires employees to undergo the CovidCheck scheme when visiting their workplace. It also allows any employer to place all or part of their business under the CovidCheck regime for external persons.
Recommendation: provide a non-CovidCheck area that is accessible to the public to ensure continuity of the company’s services, thus avoiding the need to check the certificate of people who do not need to access all the premises and/or stay for a long time.
- Can participants be asked to send their certificate by e-mail in advance?
No, according to the CNPD. The practice of asking people to send the certificate by e-mail in advance is problematic in terms of the principles of data minimization, security and confidentiality. In fact, according to the law, it is sufficient to ask people who have to go to a place under the CovidCheck regime to present their certificate on the spot.
- For companies with less than 150 employees
All decisions taken by the employer concerning the internal rules are submitted in advance to the staff delegation. For companies with fewer than 150 employees, this is consultation. The delegates are thus informed and consulted prior to the implementation of the article and have the capacity to give their opinion on the point to be added/amended in the ROI.
- For companies with more than 150 employees
For companies employing more than 150 people, co-decision is required, i.e. the Staff Delegation must give its opinion and validate the additions/modifications to be made to the ROI before they are implemented
Attention, the Staff Delegation cannot block the implementation of the CovidCheck in the company, because it is a legal obligation. The Delegation can only participate in the decision making concerning the implementation modalities.
Occupational diseases are the direct consequence of a more or less prolonged exposure to a risk (physical, chemical or biological) or to specific working conditions (noise, vibrations, working postures, etc.) in the context of the usual exercise of a profession.
It will be impossible to prove that COVID-19 is a direct result of working conditions (non-compliance with sanitary rules) since the virus is highly contagious. The history of the spread cannot be traced.
Self-monitoring lasts for 14 days and applies to people who have had low risk contact with a person who is confirmed to be infected. The aim is to detect symptoms of infection as soon as they appear.
The person under self-monitoring measures their temperature twice a day, to ensure that they do not have breathing problems or coughing and can continue with their normal activities.
Quarantine applies to people who have had high risk contact with a person with confirmed infection i.e. face-to-face contact for more than 15 minutes or unprotected physical contact. These people must stay at home for 7 days from the last contact with the infected person. The Health Inspectorate will provide them with a certificate of absence from work if necessary. During this period, unprotected contact with other people should be avoided.
From the 6th day onwards, they will be asked, after receiving the prescription, to be tested for COVID-19 in a laboratory of their choice, if the test is negative, the quarantine is automatically terminated.
For 7 days after the quarantine, they must perform self-monitoring and wear a mask when in contact with others. If symptoms appear, they must immediately be retested and placed in isolation and non-compliance is punishable by a fine.
Warning: In case of contact with a COVID-19 positive person, vaccinated or recovered persons are exempt from quarantine.
Isolation applies to people who have a confirmed COVID-19 infection. They must isolate themselves at home and people living in the same household and intimate relationships must quarantine themselves for a period of 7 days. This measure is intended to prevent the infected person, who is contagious, from transmitting the infection to those around him.
Isolation is prescribed by the Health Directorate for a period of 10 days after the onset of symptoms. For asymptomatic persons, isolation begins on the day of the test. During this period of home confinement, contact with other people must be avoided and a surgical mask must be worn whenever in the presence of others. Failure to comply with an isolation measure is punishable by a fine.
The duration of isolation is 10 days. It may be terminated before the 10 days have elapsed for the following persons
- have a complete vaccination schedule with a date of establishment less than 6 months ago, or
- have recovered from COVID-19 infection within 180 days of the positive PCR test, or
- have had a booster vaccination
and if they perform SARS-CoV-2 rapid antigen tests with negative results on days 5 and 6 of isolation at the earliest. If the results are negative, isolation is terminated on day 6.
This reduction is justified by the fact that these people have a lower viral load and, above all, a shorter duration of infectivity.
This change also applies to people already in isolation.