Who is entitled to maternity leave and how long is the maternity leave?
A pregnant woman may not be employed during the eight weeks preceding the presumed date of delivery (prenatal leave), as well as during the 8 to 12 weeks following the delivery (postnatal leave).
These two periods are commonly referred to as “maternity leave”.
In order for a pregnant woman to receive maternity benefit during her maternity leave, she must have been compulsorily insured for at least six months in the year before her maternity leave began.
Is any of the prenatal maternity leave lost if the birth occurs before the expected date?
If the birth takes place before the expected date of delivery as stated in the pregnancy certificate issued by the doctor, the unused part of the eight weeks of prenatal leave is not lost.
The days in question are simply added to the postnatal leave, which is extended.
What happens if the delivery takes place after the expected date?
In this case the prenatal leave is extended until the date of delivery and the postnatal leave is not shortened.
However, the maximum duration of maternity leave is 20 weeks.
When should a pregnant woman inform her employer of her pregnancy?
In order to benefit from the advantages and protections provided for by law, a pregnant woman must inform her employer of her pregnancy either by sending her medical certificate by registered letter or by submitting it in exchange for a signed copy as receipt.
However, it is not specified when the woman must submit the medical certificate. It can therefore be done at the beginning or at a later stage of the pregnancy.
It is generally advisable to submit the certificate as soon as possible in order to trigger the protective mechanism as soon as possible.
However, if the pregnant woman is laid off before submitting her pregnancy certificate, she has eight days to do so and, at the same time, she has 15 days to ask the Labour Court judge to cancel her dismissal.
Can a pregnant woman see her doctor during working hours?
A pregnant woman shall be exempted from work in order to attend the following examinations if they are to take place during working hours:
the dental examination which takes place as soon as the pregnant woman is aware of her condition and at the latest before the end of the fifth month of pregnancy
the first medical examination which takes place before the end of the third month of pregnancy
the second medical examination which must take place at the latest in the second fortnight of the fourth month of pregnancy
the third medical examination to be performed during the sixth month of pregnancy
the fourth medical examination which takes place in the first two weeks of the eighth month
the fifth and last examination which must take place in the first two weeks of the ninth month of pregnancy
This exemption is considered as working time and entitles the employee to normal pay.
If a permanent employee becomes pregnant during the trial period, this period shall be suspended from the date on which the employer receives a medical certificate attesting to the pregnancy.
The employee continues to work normally until the beginning of her maternity leave, without this work being qualified as trial work.
The remaining trial period will only resume at the end of a period of 12 weeks after the birth.
It should be noted that the suspension mechanism only applies in the case of a trial period stipulated in a permanent contract.
Does pregnancy affect a fixed-term (CDD) employment contract?
The contract of an employee with a fixed-term CDD is not suspended by her pregnancy. The fixed-term contract ends on the date originally agreed.
Does the period of maternity leave entitle persons to days off?
Yes, the period of maternity leave is treated as a period of actual work and therefore entitles an employee to days off.
The law also provides that annual leave not yet taken at the beginning of maternity leave may be carried over within the legal time limits, i.e. in principle until 31 March or even 31 December, depending on the date on which the employee returns to work.
Is the employee's length of service interrupted due to the maternity leave?
No, with maternity leave seniority remains intact and continues to accrue.
The law even expressly provides that the period of maternity leave is taken into account in determining an employee’s rights related to length of service (e.g. payment of a bonus, gratuity or paid 13th month depending on the years of service).
The employee also retains all the benefits she had acquired before the start of the maternity leave and benefits from any improvement in working conditions to which she would have been entitled during her absence.
What is the employee's pay during maternity leave?
During the period of maternity leave, the employee is not paid by the employer, but by the National Health Fund (CNS). She receives a maternity cash benefit equal to the sickness cash benefit, which in principle corresponds to her previous salary, with a ceiling of five times the minimum social wage (see Social parameters).
In order to be entitled to the maternity allowance, the employee must have been affiliated to the Luxembourg social security system for at least six months during the twelve months preceding the maternity leave.
Maternity allowance cannot be combined with sickness allowance or other professional income.
The answer to this question is no, as the employer is prohibited from giving notice of termination of the employment relationship:
to a pregnant woman from the time she submits the certificate of pregnancy to her employer
to a woman who has given birth, during the twelve weeks following the birth
Within 15 days of the dismissal, an employee may request the Chief Judge of the Labour Court, who shall rule urgently, to declare the dismissal null and void and to order that the employment relationship be maintained.
It should be noted that if the employee has not yet triggered her protection against dismissal by submitting a medical certificate of her pregnancy, she has eight days from the day she is notified of her dismissal to submit a medical certificate of her pregnancy. The 15-day period stated in the preceding paragraph, during which she may request annulment of her dismissal, shall run concurrently.
What should be submitted to the Luxembourg National Health Fund (CNS)?
The employee must send the CNS a medical certificate indicating the expected date of delivery. This certificate must be issued within the last 12 weeks of the pregnancy.
After the birth, a copy of the birth certificate of the new-born child must also be sent to the CNS.
CNS mailing address:
Caisse nationale de santé – CNS Service : Prestations en espèces L-2979 Luxembourg
Can an employee who has resigned following her maternity leave ask to be reinstated in the company?
An employee who, at the end of her maternity leave, gives up her job in order to devote herself fully to the education of her child, gets priority in terms of re-employment.
This means that for one year from the end of her maternity leave, she can ask her employer to re-employ her on a priority basis, subject to a request to return to her job by registered letter with acknowledgement of receipt.
For a period of one year from the date of this request, the employer is obliged to inform her when launching a recruitment procedure for a job that has been created or that has become vacant to which her qualification gives her access.
Subsequent offers by the employer, as well as refusals of these offers by the employee, must also be sent by registered letter with acknowledgement of receipt.
PLEASE NOTE: the employee has no guarantee of being taken back by her employer, so this is not a guarantee of returning to work, nor is it unpaid leave.
If the employee is rehired, the law stipulates that she shall have all the benefits she enjoyed at the time of her departure.
When a woman resigns at the end of her maternity leave, does she have to provide notice within the legal timespan?
An employee who decides at the end of her maternity leave not to return to work to care for her child may resign without having to give any notice to her employer.
However, it should be stressed that resignation without notice is provided only for women who decide to give up their work to devote themselves fully to the education of their child. It is not intended for women who, at the end of their maternity leave, want to change employers.
Foster care leave
In what cases can an employee obtain foster care leave?
“Foster care” or “Settling-in” leave means leave that may be taken when adopting a child who has not reached the age of twelve.
If both parents work, they shall designate by mutual agreement the parent who applies for this type of leave. Once a parent has applied for and been granted foster care leave, the other parent cannot apply for it. The other parent may be entitled to the 10 days of extraordinary leave (see paternity leave below).
If only one of the adopting parents is employed, he or she may get foster care leave, unless the child who has not reached the age of twelve already lives in the home of the adopting parent or is the child of his or her spouse or partner.
Does the period of foster care leave entitle persons to days off?
Yes, the period of foster care leave is considered as a period of actual work and therefore entitles the employee to days off.
The law also provides that annual leave not yet taken at the beginning of the reception leave may be postponed within the legal time limits, i.e. in principle until 31 March or even 31 December, depending on the date on which the employee resumes work.
Is the employee's length of service interrupted because of the foster care leave?
No, with this type of leave seniority of service remains intact and therefore continues to run.
The period of hospitality leave is taken into account to determine the employee’s rights related to length of service (e.g. payment of a bonus, gratuity or a 13-month period of service).
In addition, the employee retains all benefits acquired prior to the commencement of the hospitality leave and is entitled to any improvement in working conditions to which he or she would have been entitled during the absence.
What is the employee's remuneration during foster care leave?
During the period of maternity leave, employees are not paid by the employer, but by the National Health Fund. They receive a maternity allowance equal to the sickness allowance, which in principle corresponds to the salary received previously, with a ceiling of five times the minimum social salary. (See Social parameters)
In order to be entitled to the maternity allowance, the employee must have been affiliated to the Luxembourg social security administration for at least six of the last 12 months preceding the foster care leave.
Maternity allowance cannot be combined with sickness allowance or other professional income.
A certificate issued by the court that the adoption proceedings have been initiated (adoption petition) must be submitted to CNS.
CNS mailing address:
Caisse nationale de santé – CNS Service: Prestations en espèces L-2979 Luxembourg
Can an employee on foster care leave be dismissed?
No, within fifteen days of any dismissal, the employee may petition the Chief Judge of the Labour Court, who shall rule urgently, to declare the dismissal null and void and to order that the employment relationship be maintained.
In case of resignation at the end of the foster care leave, does the employee have to give notice within the legal timespan?
An employee who decides at the end of his or her foster care leave not to return to work so as to care for his or her child may resign without having to give any notice to his or her employer.
However, it should be pointed out that resignation without notice is provided for only in favour of employees who decide to give up their work to devote themselves fully to the education of their child. It is not intended for those who, at the end of their childcare leave, want to change employer.
Can an employee who has resigned following his or her foster care leave request to be reinstated in the company?
Employees who, at the end of their foster care leave, give up his job in order to devote themselves fully to the education of their child, benefit from a priority of re-employment.
This means that for one year from the end of his hospitality leave, they can ask his employer to be re-employed by priority, by requesting re-employment by registered letter with acknowledgement of receipt.
For a period of one year from the date of this request, the employer is obliged to inform them when a recruitment procedure is launched for a post that has been created or that has become vacant to which their qualification gives them access.
Subsequent offers by the employer, as well as refusals of these offers by employees, must also be sent by registered letter with acknowledgement of receipt.
PLEASE NOTE: employees have no guarantee of being taken back by their employer, so it is not a guarantee of re-employment, nor is it unpaid leave.
If employees are rehired, the law stipulates that they shall have all the benefits they enjoyed at the time of their departure.
Until 22 August 2023, paternity leave was exclusively available to fathers of newborns. Same-sex couples could only claim the additional ten days’ leave if the child had been adopted.
The law of 29th July 2023 permits the equivalent second parent recognized by the applicable national legislation based on the child or parent’s place of residence or nationality, who is authorized to establish filiation without adoption after 22nd August 2023, to take this leave.
How long is paternity leave granted ?
The law provides 80 hours for 10 days’ leave, which can be split for an employee having a regular 40-hour working week.
For employees with less than 40 hours workweek or those working part-time or having more than one employer, these leave hours are allocated proportionally according to the specified working week in the relevant collective bargaining agreement or employment contract.
When can this leave be taken?
These hours must be taken within two months of the birth of the child or, in the case of adoption, the date the child moves into the same household as the employee or when the adoption takes effect.
It is evident that the fostering leave for a child under sixteen years of age, with an aim for adoption, starts on the day the child actually moves into the same household as the worker requesting the fostering leave, or on the day the adoption takes effect, i.e. on the day the adoption is approved by an official decision.
This is to cover scenarios where a person becomes part of their partner’s household and later chooses to adopt their partner’s child.
Are there any provisions to prevent the accumulation of this leave?
The ten days of exceptional leave for the arrival of a child, whether by birth or adoption, are restricted to one leave occasion for each employee and child and are non-accumulative.
Does the employee need to provide notice?
Generally, the employer should be notified two months ahead of time about the expected dates the employee plans to take their 10-day leave.
If the employee fails to give two months’ notice, the leave must be taken in one go and immediately after the birth of the child, unless the employer and employee agree on a flexible solution allowing the employee to take the leave in full or in part later, considering as far as possible the needs of the employee and those of the employer.
Problems may arise if the child is born prematurely.
In this case, the employee who wants to avail themselves of the paternity leave may not be able to comply with the two-month notice period. Consequently, some employers only granted two days’ leave.
To prevent employees from being disadvantaged in such situations, the law of 29 July 2023 states that the notice period does not apply if the birth takes place in the two months before the presumed date.
Who is financially responsible for this leave?
Starting from the seventeenth hour, the State budget covers the expenses.
For employees who work part-time, have more than one employer or have a working week of less than forty hours, the hour from which reimbursement is payable shall be determined based on a proportional calculation according to the working week specified in the relevant collective agreement or employment contract.
The factors used to determine the amount reimbursed by the Minister of Labour comprise of the employer’s declared basic salary to the Joint Social Security Centre, along with the relevant social security contributions corresponding to the duration of the leave. The basic pay considered for calculating the reimbursement is restricted to five times the minimum wage ceiling (see Social parameters) applicable for unskilled labourers.
If the employee works part-time, the limit is adjusted proportionally based on the amount of time worked. In order for the employer to receive reimbursement for wages and social security contributions, they must electronically submit the request, along with supporting documents, via Myguichet.lu within 5 months from the child’s date of birth, or in the case of adoption, the date the child moves into the same household or the date the adoption takes effect. Failure to do so will result in the request being time-barred.
Requests that are not transmitted via Myguichet.lu will be accepted only if the applicant can justify being unable to access this mode of transmission. The Minister of Labour informs the employer about the details and amount transferred by the State Treasury through the electronic platform established for this specific purpose. In case of a legitimate request sent through other means, it will be conveyed via simple mail or electronic mail.
Any compensation granted through false or inaccurate declarations must be repaid.
Parental leave is the leave that can be taken by parents of a child under the age of six (or the age of 12 in the case of adoption) who wish to interrupt their professional career to devote themselves to the education of their child for a certain period of time.
CAUTION: Parental leave must begin before the child’s sixth birthday or the adopted child’s twelfth birthday.
In the case of adoption, parental leave may be taken within six years of the end of the foster care leave or, if foster care leave has not been taken, within six years of the adoption ruling until the child reaches the age of 12 at the latest.
Parental leave can be taken by either parent. Both parents are individually entitled to parental leave.
The initial parental leave must be taken by either parent directly at the end of maternity or foster care leave or it will be lost.
The second parental leave can be taken up to the age of under the age of six (or the age of 12 in the case of adoption) by the parent who did not take the initial parental leave.
In the case of adoption, parental leave may be taken within six years of the end of the foster care leave or, if foster care leave has not been taken, within six years of the adoption judgment until the child reaches the age of 12 at the latest.
If neither parent has taken the first parental leave, the second parental leave can be taken by one parent.
Can both parents take parental leave at the same time?
Since 1 December 2016, parents can take parental leave at the same time by indicating in their respective applications who takes the first and who takes the second parental leave.
Can an employee with a fixed-term contract (CDD) benefit from parental leave?
The law requires the existence of an employment contract during the entire period of parental leave as a condition for the granting of parental leave.
Consequently, an employee holding a fixed-term contract whose expiry date is not later than the end date of the parental leave cannot be granted parental leave.
The fact that a person is on parental leave does not prevent the fixed-term contract from ending at the end of the original term. Parental leave does not suspend fixed-term contracts.
Can an employee be granted parental leave during the trial period?
Employees with an employment contract that includes a trial period clause is not entitled to parental leave during that period. They must wait until the end of this period to apply.
Is a parent entitled to double parental leave if the other parent gives up theirs?
No, if a parent (either the mother or the father) does not take parental leave themselves, it is lost. They cannot waive their right to parental leave in favour of the other parent. The law clearly states that parental leave is not transferable from one parent to the other.
Under what conditions can parental leave be taken?
The employee or apprentice is entitled to parental leave under the following conditions:
He or she must have been affiliated for at least 12 continuous months before the start of the parental leave.
However, one or more interruptions shall not result in the loss of the right to parental leave, where such interruption(s) do not exceed seven days in total, during the year preceding the commencement of the parental leave.
Employees requesting parental leave must have worked for at least 12 months with the same employer(s) for a total of at least ten working hours per week. The condition of employment with the same employer is presumed to be fulfilled if, as a result of a sale, merger or transfer of the company, the employee parent is transferred without interruption to another job.
If an employee changes employer during the 12-month period preceding or during the period of parental leave, leave may be granted only with the agreement of the new employer.
In addition, the period of affiliation under an employment measure organised by the Employment Development Agency and a work integration activity organised by the National Social Action Service immediately preceding a period covered by an employment contract concluded with the same employer or, where applicable, with the entity promoting the measure or the assigning body, is taken into account as part of the required period of affiliation of 12 months.
The employment of the head of one or more employment contracts or an apprenticeship contract must continue throughout the period of parental leave
The employee’s working time is at least ten hours per week
Working time of the employed parent is the time specified in the employment contract. Should this working time change during the year preceding the start of the parental leave, the average calculated over the year in question shall be taken into account.
PLEASE NOTE:
To be entitled to part-time parental leave, the working time applicable to the parent must be at least half the normal working time applicable in the establishment/company, i.e. in principle at least 20 hours per week.
To be entitled to split parental leave, the parent’s working hours must be equal to the normal working hours applicable in the establishment/company (full-time work).
The working time applicable to the applicant parent at the date such application is submitted to the employer shall be the period taken into account. However, the parent is only entitled to full-time parental leave if, between the time of notification of the application for parental leave and the start of the parental leave, the required duration conditions are no longer met.
Note that apprentices are only entitled to full-time parental leave of four or six months.
An employee whose working hours are at least half the normal working hours of the company may choose this half parental leave, which will correspond to a 50% reduction in working hours.
Split parental leave
An employee working full time for the same employer, i.e. in principle 40 hours per week, may, with the agreement of his employer, reduce his work activity by 20% per week or reduce his work activity over a period of four separate months, through a period extending over 20 months.
ATTENTION: While full-time leave is a right for beneficiaries, part-time or split leave is subject to an employer’s agreement. An employer may refuse to grant part-time or split leave, in which case the applicant must either take the full-time leave over four or six months, or abandon the leave.
When a parent suspends work entirely, he or she is entitled to four or six months of full-time leave, even if he or she worked only part-time before the parental leave. This leave is automatic and an employer cannot refuse it if the request has been duly notified.
If the parent does not want to stop working completely, he or she can take part-time parental leave for eight or 12 months. In this case, he or she must reduce their working hours by at least half of the working hours before the parental leave. In order to be entitled to part-time parental leave, the working hours applicable to the parent must be at least half of the normal working hours applicable in the establishment/company, i.e. in principle at least 20 hours per week.
The parent may also opt for split parental leave: he or she may then reduce working time by either 20% per week or completely for four months separate months over a 20-month period.
To be entitled to split parental leave, the parent’s working hours must be equal to the normal working hours applicable in the establishment/company.
The details of the split parental leave are to be agreed upon in a parental leave plan between the employer and the parent within 4 weeks of the parent’s application. This plan covers the entire period of the agreed parental leave and must be submitted to the Children’s Future Fund (CAE) together with the application itself.
Any modifications approved by mutual agreement between the parent and the employer, are only possible for adjustments to the schedule or months of the calendar.
If the employer refuses to grant parental leave in one of these forms, it must give reasons for its decision and inform the beneficiary parent by registered letter with acknowledgement of receipt at the latest within 2 weeks of the request and invite the parent to an interview within 2 weeks of this notification.
During this interview, the employer must offer the parent a written proposal for an alternative form of parental leave or a different parental leave plan to that requested by the parent. If no parental leave plan is agreed and signed by both parties 2 weeks after this interview, the parent is entitled to the parental leave of his/her choice of 6 months or 4 months full-time.
Who should employees contact to obtain parental leave?
The first step is for an individual to apply to their employer for parental leave.
This request must be submitted via a registered letter with acknowledgement of receipt.
For an initial parental leave, the written request must be sent to the employer two months before the start of maternity leave.
In the case of adoption, an application must be submitted to the employer before the start of the leave.
If this is the second parental leave, the request must be made with four months’ notice. In other words, parental leave can begin no earlier than four months after the day of application.
After submitting the application to the employer, applicants must apply to the CAE to obtain a special form or download it from the website www.cae.lu.
Employees then complete the form, have it signed by their employer and return it to the CAE:
for an initial parental leave, within 15 days of the notification of the request for parental leave to the employer
for the second parental leave, within 15 days of notification of the employer’s reply or, in the absence of a reply, within 15 days of expiry of the four-week period provided for in the case of postponement of leave
For the sake of completeness, various other information must also be reported to the CAE:
the birth of a child must be declared within 15 days of the declaration at the civil registry
in the case of the adoption of a child, applications for parental leave allowance must be accompanied by a court certificate stating that the adoption proceedings have been initiated
The answer to this question varies depending on whether it the initial or second parental leaveand whether it is taken full time, part time or split basis.
Employers who receive an application for a full-timeparental leave following maternity or foster care leave, they are obliged to grant the leave. However, an employer may refuse the leave if the application was not submitted in the legal form within the stated deadline or if the applicant does not meet the legal requirements.
However, failure to comply with the form and time limits alone has no effect on an application following the death of a mother before the expiry of her maternity leave or parental leave following maternity leave. The same provision applies to the mother in the event of a father’s death before the expiry of his parental leave.
In these cases, simply informing the employer will suffice, so that the surviving parent can then take parental leave following the death.
With regard to the second parental leave, an employer may demur from refusing it, instead postponing the beginning of the leave to a later date (see next question).
In four cases, however, employers can refuse an application for parental leave:
The individual requests a part-time parental leave of eight or 12 months or a split leave. The employer may refuse to grant this type of leave. The parent must then either take the leave full-time over four or six months or withdraw the application. If an employer rejects split leave, he must offer an alternative;
The application is made by a person who has changed employers in the year before the leave is to begin. This person can obtain parental leave if the new employer agrees. The new employer may refuse it;
If an employee who is already on parental leave is hired, the new employer is not obliged to accept the continuation of the parental leave. However, if the new employer agrees, the parental leave shall be continued without interruption;
As long as the employee is in a trial period, parental leave cannot be requested.
An employer wishing to decline flexible parental leave, such as part-time or split parental leave, must notify the requesting parent within two weeks of the request via registered letter with acknowledgment of receipt. The employer must also invite the parent to an interview within two weeks of this notification while stating the reasons for the decision.
Can the employer delay the start of parental leave?
The answer to this question varies depending on whether it refers to the first or second parental leave.
In the case of the first leave, an employer cannot put back the start of the leave to a later date. The first leave always begins at the end of maternity or foster care leave.
For the second leave, the employer may postpone the start of the leave to a date other than that indicated on the employee’s application.
The justification an employer may have for this deferral is one of the following situations:
when a significant proportion of a company or a company department requests parental leave at the same time and the organisation within the company would be seriously disrupted as a result
the replacement of an employee on leave cannot be arranged during the four-month notice period because of the specific nature of the work that person performs or because of a shortage of labour in the industry in question
the applicant is a senior manager who is involved in the actual management of this type of application in a company with less than 15 employees
where the work is seasonal in nature and the claim is for a period within the high season
when the company regularly employs less than 15 people
In principle, the employer may delay the start of the leave by up to two months. This period is extended:
to a maximum of six months for companies with less than 15 employees
until the end of the season for companies with seasonal business
The employer must then send his decision to postpone by registered letter with acknowledgement of receipt at the latest within four weeks of the request.
If it is decided to postpone parental leave, the employer must, if possible, offer the employee an alternative form of part-time or shared parental leave.
The employer must propose a new date for taking leave to the employee within one month, which may not be more than two months (six months for companies with less than 15 employees) after the date of commencement of the requested leave, unless the employee expressly requests otherwise. In this case, the employee’s request can no longer be refused.
Furthermore, the employer must inform the employee delegation if one exists.
If the parent considers that the reason for postponement given by the employer is not justified, he or she may apply to the Labour and Mines Inspectorate. The same right belongs to the employee delegation (including the equality representative), as well as to the nationwide representative trade unions present in the employee delegation or bound by the collective agreement applicable to the company.
If no agreement is reached within eight days, one of the parties may refer the matter to the Labour Court for summary proceedings.
It should be noted that no postponement is possible:
once an employer has agreed to the parental leave
if an employer has not responded to the parent’s request within four weeks
when the parent works for several employers and these disagree about the deferral
in the event of a serious event related to the child
What are the procedures for concluding a fixed-term employment contract (CDD) to replace an employee on parental leave?
Replacing an employee who is absent due to parental leave (maternity leave or leave for family reasons) does not necessarily mean that the new hire will have the job occupied by the absent employee. It can be done on another position freed up in the company or establishment as a result of internal reorganizations or transfers that took place following this employee’s absence.
A fixed-term contract concluded to replace an absent employee must specify the absent employee’s name.
In the event of cascade replacement, the CDD will indicate the name of the employee on parental leave who is indirectly replaced.
A contract to replace an employee absent on parental leave may begin three months prior to the start date of the parental leave or three months prior to the start date of the maternity leave, if the parental leave is taken following maternity leave.
Similarly, it may cease three months after the end of the replaced employee’s parental leave.
During the period of parental leave, the loss of professional income is compensated by a replacement income, hereinafter referred to as “allowance”, which is paid monthly by the Children’s Future Fund (CAE) or by the Zukunftskeess. A calculator is available on the CAE website.
The allowance shall be calculated on the basis of the income on which social contributions are made of the beneficiary of parental leave in respect to the funds being contributed to at the start of the parental leave.
The amount of the allowance shall correspond to the average monthly professional income achieved during the 12 calendar months preceding the start of the parental leave.
Changes in income after the start of parental leave will trigger a recalculation of this allowance.
The amounts of professional income used to calculate the allowance shall be reduced to the figure 100 of the cost-of-living index and adjusted to reflect changes in that index in accordance with the rules applicable to the salaries and pensions of civil servants.
However, there is a ceiling on this allowance:
lower limit equal to the unskilled minimum social wage
upper limit equal to 5/3 of the the unskilled minimum social wage (see Social parameters)
ATTENTION: The compensation ceilings vary according to the number of hours worked. These amounts correspond to full-time employment contracts for full-time parental leave.
The allowance is subject to the tax and social security charges applicable to salaries, but exempt from contributions for sick pay and accident insurance and family allowances. The employer’s share of the social security contributions is borne by CAE.
Parental leave allowance may be assigned, garnished or pledged within the limits set by the amended law dated 11 November 1970 on the assignment and garnishment of work compensation and pensions.
Such garnishment, assignment or pledge may only be for the purpose of covering:
claims against municipalities, social agencies, public institutions and administrations for the reimbursement of assistance granted insofar as such assistance concerns beneficiary children or for the reimbursement of expenses advanced for the maintenance or education of beneficiary children
a debt owed by the recipient to a social security institution
the monthly instalments due for the repayment of a loan granted for the construction or acquisition of a family home, provided that the beneficiary children are statutorily entitled heirs of the debtor concerned
In no other cases may the indemnity be assigned, garnished or pledged.
What are the employee's rights during parental leave?
As parental leave must not have a negative impact on the rights of the beneficiary, these rights must be guaranteed.
It is with this in mind that the period of parental leave is taken into account in calculating the beneficiary’s length of service. Similarly, the beneficiary does not lose any of the benefits acquired before the start of the parental leave (bonuses, gratuities, etc.).
The period of parental leave shall be taken into account to calculate a trial period for entitlement to full unemployment allowance. However, the lump-sum cash allowance paid during the parental leave shall not be taken into account to calculate the amount of full unemployment allowance.
Certain measures have been introduced to facilitate the return to the company of a parent who is absent on parental leave.
Accordingly, workers on parental leave have the right to access continuing training measures organised or offered by the employer in order to keep up with technical developments and production processes.
In addition, the employer and the employee on parental leave may stipulate by mutual agreement that the employee will attend events organised by or at the request of the employer. This should be done via an amendment to the employment contract, to be signed no later than one month before the start of parental leave. These include departmental meetings, meetings or information sessions (e.g. on the development of the company, changes in procedures or techniques, the operation of the department or the company or the introduction of innovations) as well as further training likely to ensure or improve the employee’s employability when he or she returns to work.
The amendment sets out the number, times and other practical arrangements for these events.
Such measures may not, however, have the purpose or effect of involving the employee from participating in the normal and routine work of the undertaking, or in the performance of additional work. Violation of this provision shall entitle the employee to damages.
A worker may unilaterally terminate this agreement, either by registered letter, or by hand-delivery to the employer or his representative, or by e-mail, all with acknowledgement of receipt. Such termination shall not give rise to any sanction and shall not constitute grounds for dismissal.
The period of parental leave does not entitle employees to paid annual leave. Accumulated leave not yet taken before the start of parental leave may in principle be carried over to the post-parental leave period, but within the legal time limits (either 31 December of the current year, or 31 March or 31 December of the following year, depending on the date on which the employee returns to work after parental leave).
Can an employer dismiss a person on parental leave?
The employer is not only obliged to take back the beneficiary at the end of the parental leave, but also to keep the beneficiary’s previous job to the extent possible.
Termination with notice
The prohibition on the employer’s dismissal with notice of parental leave (or on summoning the employee to an interview prior to dismissal with notice) applies from the last day of the period for giving notice of the request for parental leave.
Therefore, in the case of the initial parental leave, the protection takes effect two months before the start of maternity leave / from the day before the start of foster care leave.
For the second parental leave, it applies during the four months preceding the start of the parental leave.
From these dates and throughout the period of parental leave, the beneficiary shall not be subject to dismissal with notice or to a notice of interview prior to dismissal with notice.
Any termination of the contract despite this prohibition is considered null and void. However, an employee must apply to the Chief Judge of the Labour Court in order to assert this nullity. This official will declare the dismissal null and void and order the continuation of the employment contract. The employee has a period of 15 days after the dismissal to do this.
Dismissal with immediate effect
Beneficiaries of parental leave have no protection if they are guilty of gross misconduct. In this case, the employer retains the right to terminate the employment contract with immediate effect.
The termination of the employment contract means the end of the parental leave and employees must return the parental leave payments already received.
Does the employer have to reinstate the person at the end of the parental leave?
The employer is not only obliged to take back the beneficiary at the end of the parental leave, but also to keep that person’s previous job open to the extent possible.
Only in exceptional and objectively justified cases may the employer offer the employee a similar job, corresponding to his or her qualifications and with equivalent remuneration.
The main thing is that the working conditions after parental leave are not diminished. Naturally, an employer may give the beneficiary a better position after returning from parental leave.
Can a parent ask to have their working conditions relaxed?
Yes, a parent may request an interview with the employer to this end. The parent may request an adjustment of his or her work schedule or work rhythm for a specified period of time, which may not exceed one year from the date set for his or her return to work.
An employer who refuses such a request by an employee must substantiate this rejection. If the rejection is not effectively substantiated, the employee may be entitled to damages, an issue to be determined by the Labour Tribunal.
What happens if a beneficiary decides at the end of the parental leave not to return to work?
At the end of the parental leave, the beneficiary of the parental leave is in principle obliged to return to his job immediately. However, he or she may resign afterwards in accordance with the legal rules on resignation.
An employee who does not wish to return to work at all at the end of the parental leave is required to inform the employer of this during the parental leave, by registered letter with acknowledgement of receipt, within a period equal to that which would be required for resignation with notice, the notice period depending on the employee’s length of service.
However, this obligation to inform the employer does not exempt the employee from notifying the employer of the resignation in accordance with procedure, although this notification can only take place at the earliest on the first day of the legal notice period.
NOTE: Failure to return to work at the end of the parental leave without a serious and legitimate reason and failing to inform an employer of intent to resign as explained above constitutes a legitimate reason for the employer to terminate the employment contract with immediate effect for serious reasons.
What happens if a child dies or an adoption is rejected during the parental leave?
If a child dies during the parental leave or if an adoption procedure is unsuccessful, the parental leave that has been started is terminated.
The beneficiary is then required to return to work no later than one month after the death of the child or the rejection of the adoption application.
Where the employer has replaced the beneficiary during the period of parental leave, this person shall be entitled to priority re-employment in the same company for any similar vacant post corresponding to his or her qualifications and offering at least equivalent remuneration. If it is not possible to take up such employment, the parental leave shall be extended, but not beyond its initial term.
In the event of the death of a child of a multiple birth or adoption before the period of extension of parental leave, the period of leave shall be reduced accordingly.
For each month that the parental leave begins, the beneficiary receives a pro rata share of the parental leave allowance. The monthly payments received up to that point shall be retained.
If the beneficiary parent dies, that person’s parental leave shall cease. Such termination of parental leave shall not entail the return of any allowances already received.
The other parent may, if necessary, take parental leave following the death, after duly informing the employer.
What is the impact of further maternity or foster care leave during parental leave?
The occurrence of a new maternity or foster care leave during a mother’s parental leave interrupts the current parental leave.
In this case, maternity leave or foster care leave replaces parental leave. Parental leave allowance shall cease to be paid and shall be replaced by maternity allowance.
The remaining part of the parental leave shall be attached to the new maternity leave.
If the employee decides to take parental leave for the new child, subsequent to the maternity or foster care leave, this new parental leave is then automatically postponed until the end of the part of the parental leave attached to the maternity or foster care leave and must be taken consecutively to it.
However, if the parental leave was taken by the father, it is not interrupted by a new maternity leave.
Can a person change employers during parental leave?
A change of employer during the parental leave is possible if the new employer agrees to the employee continuing the parental leave. In this case, a letter from the new employer must be sent certifying agreement that the employee continue the parental leave, together with a copy of the new employment contract.
How does the termination of the employer's business due to bankruptcy, death, or physical disability affect parental leave?
If the employer’s business ceases, due to bankruptcy, death or physical incapacity, the law provides for the automatic termination of employees’ employment contracts, unless the business is continued by a receiver (in case of bankruptcy) or the employer’s successor (in case of death or physical incapacity).
The termination of the employment contract should in these cases also result in the termination of the parental leave, but without the employee having to return the parental leave allowances already received, as the cause is outside of the beneficiary’s control.
What are the procedures for concluding a fixed-term employment contract (CDD) to replace an employee on parental leave?
Cascading replacements are allowed
Replacing an employee who is absent due to parental leave (maternity leave or leave for family reasons) does not necessarily mean that the new hire will have the job occupied by the absent employee. It can be done on another position freed up in the company or establishment as a result of internal reorganizations or transfers that took place following this employee’s absence.
The fixed-term contract must state the name of the employee on parental leave who is being replaced
A fixed-term contract concluded to replace an absent employee must specify the employee’s name.
In the event of a cascade replacement, the CDD will indicate the name of the employee on parental leave who is indirectly replaced.
Start and end date of the fixed-term contract
A contract to replace an employee absent on parental leave may begin three months prior to the start date of the parental leave or three months prior to the start date of the maternity leave, if the parental leave is taken following maternity leave.
Similarly, it may cease three months after the end of the replaced employee’s parental leave.
CSL Publication
Parental leave
Find more information in our publication downloadable HERE
Leave for family reasons
What is the purpose of leave for family reasons?
Family leave allows parents with a sick child to stay at the child’s bedside during the early stages of the illness and to seek alternative care if the illness lasts longer.
The leave for family reasons is granted in the event of a child’s illness, accident or other compelling health reason that requires the presence of one of the parents.
It is up to a doctor to indicate on the medical certificate that the presence of the parent is indispensable.
The same shall apply in the case of quarantine of a child under the age of thirteen years and of isolation, eviction, removal, separation or house arrest of a child under the age of thirteen years, for imperative reasons of public health, decided or recommended by the competent national or foreign authority, with a view to limiting the spread of an epidemic.
civil servants, employees and workers of the State, a municipality or a public institution, as well as CFL employees
Family leave is not limited to the case where both parents work. Therefore, if only one parent is working and the other is a homemaker, the employed or apprentice parent is entitled to family leave.
Each working parent has an individual right to leave for family reasons. However, the law specifies that both parents cannot take family leave at the same time.
Until 31 December 2017, in principle, leave for family reasons was limited to two days per year, per working parent and per child.
The duration of the leave for family reasons was increased to four days per year for children receiving the special allowance for disabled children.
Since 1 January 2018, the length of leave depends on the age of the child:
12 days if the child is less than four years old;
18 days if the child is between four and 13 years of age;
five days if the child is between the ages of 13 and 18, but only if he or she is hospitalised.
For children receiving the special allowance for disabled children, the leave for family reasons due per age bracket is doubled. In addition, the last age bracket applies without age limit for these children and without condition of hospitalisation.
ATTENTION:
The days of leave for family reason already taken on 1 January 2018 on the basis of the former legal provisions in the age bracket concerned shall be deducted from the maximum number of days of leave for family reasons that can be allocated in the age bracket in question.
This transitional rule applies only to the first two age brackets, i.e. to children aged over 0 and under 13, whereas the last bracket concerns an age category not covered by the current provisions, i.e. that between 15 and 18, and sets an additional condition, since leave for family reasons applies only in the event of the young person’s hospitalisation between 13 and 18.
On the advice of the Social Security Medical Examiner, this period may be extended if the child suffers from an exceptionally serious illness (cancer and hospitalisation of more than two weeks according to a Grand Ducal regulation of 10 May 1999). In this case, a complete file including a medical report must be submitted to the National Health Fund.
The length of the extension is determined individually on a case-by-case basis, with the understanding that the maximum duration of leave for family reasons is limited to 52 weeks (out of a reference period of 104 weeks).
Extension (within the 52-week limit) is also possible in the case of quarantine of a child under 13 years of age and isolation, eviction or confinement of a child under 13 years of age for imperative reasons of public health, decided or recommended by the competent national or foreign authority, in order to limit the spread of an epidemic.
What procedures must be followed with regard to the employer?
Leave for family reasons shall be treated as an absence due to illness.
It follows that the beneficiary must, on the day of his absence, inform his employer of the child’s illness. This information can be given either orally or in writing. The beneficiary may do this himself or appoint a third party.
In addition to this notification, the beneficiary must submit a medical certificate to his employer. This certificate must indicate health registration numbers of both the sick child and the parent, the identity of the child, the serious illness from which the child is suffering and its foreseeable duration. It must also state that the parent’s presence with the child is necessary.
The medical certificate must reach the employer as soon as possible, preferably the day after notification of the illness.
It should be noted that a medical certificate must be submitted to the employer regardless of the duration of the child’s illness, even if it lasts only one day.
Who pays the salary during leave for family reasons?
The days taken as leave for family reasons are not compensated by the employer, but by the competent sickness fund.
In practice, it is up to the employer to advance pay due for the days of leave for family reasons. It is subsequently reimbursed by the National Health Fund, based on the employee’s medical certificate.
Can an employee on leave for family reasons be dismissed?
If the beneficiary has informed his employer on the day of his absence, he is protected from that moment on against dismissal.
It should be noted that this protection does not apply for the entire duration of the child’s illness, but only during the absence of the beneficiary as indicated in the medical certificate.
Any breach of the employment contract in spite of this protection shall be considered abusive and shall give rise to damages.
However, protection from dismissal does not apply if:
the beneficiary did not inform his employer on the first day of his absence
a medical certificate is not submitted to the employer
the first days’ notice or the presentation of the medical certificate takes place after the beneficiary has received the letter of dismissal or the letter convening the preliminary interview
Is an employee with a fixed-term contract entitled to leave for family reasons?
Like those with a permanent contract of employment, an employee with a fixed-term contract is entitled to special leave in the event of a serious health condition of his or her child.
However, the fact that the child’s illness extends beyond the end of the contract does not prevent the contract from ending on the scheduled date.
Is leave for family reasons due to an employee who is still in a trial period?
The answer to this question is yes. An employee on trial is entitled to leave for family reasons in the same way as employees on permanent contracts.
However, if the child’s illness occurs during this phase, the trial period shall be extended by a period equal to that of the leave.
End-of-life support leave
What is the purpose of leave for the support of persons at the end of life?
Thanks to this special leave for the accompaniment of a person at the end of life, hereinafter referred to as “end-of-life support leave”, any person can refrain from working in order to remain at the bedside of a loved one who is suffering from a serious terminal illness.
The law has limited this leave to the serious illness of one of the following persons:
a blood relative in the first degree in the ascending or descending line, i.e. a father and mother or children
a relative in the second degree in the collateral line, i.e. a brother and sister
a spouse or partner within the meaning of Article 2 of the Act of 9 July 2004 on the legal effects of certain partnerships
Is it possible to share this leave with another parent?
End-of-life support leave may be granted to only one person at a time.
However, if during this period 2 or more persons share the care of the person at the end of life, they may each take part-time support leave, with maximum total leave amounting to 40 hours.
What are the procedures to be followed with regard to the employer?
The administration of this end-of-life support leave is similar to that of leave for family reasons.
Beneficiaries must notify their employer or the employer’s representative, either orally or in writing, no later than the first day of the absence.
The absence of the beneficiary of this leave shall be justified by a medical certificate attesting to the serious terminal illness of the person they are supporting and the need for the continuous presence of the beneficiary of the leave.
At the request of his employer or the National Health Fund (CNS), the employee must prove that the various conditions for obtaining support leave are met.
ATTENTION:
In practice, the CNS requires employees to send it a medical certificate attesting to the serious terminal illness of the person requiring support.
As confirmation of the granting of leave, the CNS will send an information package to the address indicated by the applicant.
This booklet includes a set of forms labelled “Proof of Absence for End-of-Life Support Leave” and individual labels to be affixed to the forms, each of which has the value of one hour’s credit for this type of leave.
The beneficiary of end-of-life leave shall notify his employer at the latest on the first day of his absence for this leave by sending him the appropriate number of absence forms with related labels affixed.
For further information on managing this process, please contact:
National Health Fund – CNS Service: End-of-Life Leave Service – Cash benefits Phone: 2757-4056 Fax: 2757-4343 www.cns.lu
Who pays the salary during end-of-life support leave?
The days taken under this leave are paid not by the employer, but by the National Health Fund.
Can an employee on leave to support a dying person be dismissed?
The period of end-of-life support leave shall be treated as a period of incapacity for work due to illness or accident. The legal provisions on social security and protection at work therefore remain applicable to the beneficiaries of this type of leave.
If a beneficiary has informed his employer on the day of his absence, he is protected from that moment from dismissal.
Any breach of the employment contract in spite of this protection shall be considered abusive and shall give rise to damages.
However, protection from dismissal does not apply if:
the beneficiary failed to inform his employer on the first day of his absence
a medical certificate is not submitted to the employer
the first days’ notice or the presentation of the medical certificate takes place after the beneficiary has received a letter convening the preliminary interview
Can an employee with a fixed-term contract claim leave to support people at the end of life?
Just like those with a permanent employment contract, an employee with a fixed-term contract is entitled to special leave in the event of the serious health condition of a relative.
However, the fact that the family member’s illness extends beyond the end of the contract does not prevent the contract from ending on its end date.
Is a leave of absence for supporting persons at the end of their life due to an employee who is still in their trial period?
Employees in their trial period are entitled to support leave in the same way as employees on permanent contracts.
However, the trial period shall be extended by a period equal to that of the leave.
Leave for reasons of force majeure
When is an employee entitled to time off for reasons of force majeure?
The employee is entitled to extraordinary leave for reasons of force majeure linked to urgent family reasons in the event of illness or accident making the employee’s immediate presence indispensable.
This leave for reasons of force majeure corresponds to one day’s extraordinary leave over a 12-month employment period, i.e. 8 hours per day for a full-time employee, which can be split into whole hours.
For employees whose working week is less than forty hours, who work part-time or who have several employers, these hours of leave are fixed in proportion to the weekly working hours laid down in the collective labour agreement or the employment contract concerned.
What should an employee do if he wishes to take leave for reasons of force majeure?
An employee wishing to take such leave must notify the employer or a representative of the employer, personally or through an intermediary, orally or in writing, no later than the day of the absence.
On the third day of his absence at the latest, the employee must provide his employer with a medical certificate attesting that the conditions for entitlement have been met and a document proving the family relationship between the employee and the person in need or that their respective places of residence correspond.
50% of the wages paid by the employer for this leave are borne by the State budget. The elements taken into account to calculate the amount to be reimbursed by the Minister of Labour are the basic salary declared by the employer to the Joint Social Security Centre (Centre commun de la sécuritésociale – CCSS), plus the social security contributions payable by the employer in respect of the period of leave taken. The basic salary used to calculate the reimbursement is limited to five times the minimum social salary for unskilled workers. If the employee works part-time, the limit is adjusted proportionally according to the number of hours worked.
To obtain this reimbursement, the employer must submit the request, with supporting documents, electronically via Myguichet.lu within six months of the date on which the leave is taken, or from the last day of the leave if the employee takes it for several consecutive days, on pain of foreclosure.
Requests not submitted by this means will only be accepted if the applicant can justify that he/she does not have access to this means of transmission. The Minister of Labour informs the employer of the details and the amount paid by the State Treasury via the electronic platform intended for this purpose or, in the event of a justified request sent by another means, by simple or electronic mail.
Compensation unduly granted on the basis of false or erroneous declarations must be returned.
How are employees protected during leave for reasons of force majeure?
Throughout the period of leave, the employment contract is maintained. The employer is not authorised to notify the employee of the termination of his employment contract or, where applicable, the notice to attend the interview prior to dismissal on the grounds that the employee has requested or benefited from such leave.
Termination of the employment contract in breach of these provisions is null and void. Within 15 days of the dismissal, the employee may apply to the President of the Labour Tribunal, who shall rule as a matter of urgency and as in summary proceedings, with the parties heard or duly summoned, to declare the dismissal null and void and to order that his employment contract be maintained.
The order of the president of the labour court is provisionally enforceable. It may be appealed by simple request, within fifteen days of notification through the court registry, to the judge presiding the division of the Court of Appeal to which appeals in employment law are assigned. The parties will be heard or duly summoned.
During the period of leave, the employer is obliged to keep the employee’s job or, if this is not possible, a similar job corresponding to the employee’s qualifications and offering at least equivalent pay. The duration of the leave is taken into account when determining seniority rights.
The employee retains all the benefits he/she had acquired before the start of the leave. The employee may not be subject to reprisals or less favourable treatment on the grounds of having made a request for the granting of leave for reasons of force majeure or of having benefited from it.
The employee is entitled to extraordinary leave to provide personal care or assistance to a family member or a person who lives in the same household as the employee and who requires considerable care or assistance for serious medical reasons.
The serious medical reason reduces the employee’s capacity and autonomy, rendering the person incapable of compensating for or coping autonomously with physical, cognitive or psychological deficiencies or health-related constraints or requirements. It must be certified by a doctor.
A family member is defined as a son, daughter, mother, father, spouse or partner.
Caregiver leave corresponds to 5 days over a 12-month employment period, up to a maximum of 8 hours per day for a full-time employee, which can be split into whole hours.
For employees whose working week is less than forty hours, who work part-time or who have several employers, these hours of leave are set in proportion to the weekly working hours laid down in the collective labour agreement or the employment contract concerned.
What should an employee do if he or she wishes to take caregiver leave?
Employees wishing to take this leave must notify their employer or a representative of their employer, personally or through an intermediary, orally or in writing, no later than the day of the absence.
For the caregiverleave, on the third day of his absence at the latest, the employee must provide his employer with a medical certificate attesting that the conditions for entitlement have been met and a document proving the family relationship between the employee and the person in need or that their respective places of residence correspond.
50% of the salaries paid by the employer for such leave are borne by the State budget. The elements taken into account when calculating the amount to be reimbursed by the Minister for Employment are the basic salary declared by the employer to the Social Security Centre (Centre commun de la sécurité sociale – CCSS), plus the social security contributions payable by the employer in respect of the period of leave taken. The basic salary used to calculate the reimbursement is limited to five times the minimum social salary for unskilled workers. If the employee works part-time, the limit is adjusted proportionally according to the number of hours worked.
To obtain this reimbursement, the employer must submit the request, with supporting documents, electronically via Myguichet.lu within six months of the date on which the leave is taken, or from the last day of the leave if the employee takes it for several consecutive days, on pain of foreclosure.
Requests not submitted by this means will only be accepted if the applicant can justify that he/she does not have access to this means of transmission. The Minister of Labour informs the employer of the details and the amount paid by the State Treasury via the electronic platform intended for this purpose or, in the event of a justified request sent by another means, by simple or electronic mail.
Allowances unduly granted on the basis of false or erroneous declarations must be returned.
How are employees protected during caregiver leave?
Throughout the period of such leave, the employment contract is maintained. The employer is not authorised to notify the employee of the termination of his employment contract or, where applicable, of the notice to attend the interview prior to dismissal on the grounds that the employee has requested or benefited from one of these forms of leave.
Termination of the employment contract in breach of these provisions is null and void. Within 15 days of the dismissal, the employee may apply to the President of the Labour Court, who shall rule as a matter of urgency and as in summary proceedings, with the parties heard or duly summoned, to declare the dismissal null and void and to order that his employment contract be maintained.
The order of the president of the labour court is provisionally enforceable. It may be appealed by simple request, within fifteen days of notification through the court registry, to the judge presiding the division of the Court of Appeal to which appeals in employment law are assigned. The case is decided as a matter of urgency, after the parties have been heard or duly summoned.
During the period of leave, the employer is obliged to keep the employee’s job or, if this is not possible, a similar job corresponding to his qualifications and offering at least equivalent pay. The period of leave is taken into account in determining seniority rights.
The employee retains the benefit of all the advantages acquired before the start of the leave. The employee may not be the subject of reprisals or less favourable treatment on the grounds of having made a request for the granting of one of the leaves listed above or of having benefited from it.