The protective rules apply not only to female employees and apprentices, but also to male and female students working during school holidays.
Article L. 331-2 of the Labour Code defines a pregnant woman as any employee who is pregnant and who has informed the employer of her condition by means of a medical certificate sent by registered mail, and a breastfeeding woman as any employee who is breastfeeding her child beyond the eight-week period following childbirth and who informs her employer of this by means of a medical certificate sent by registered mail.
The employer’s signature on the duplicate medical certificates attesting to the pregnancy or breastfeeding is equivalent to an acknowledgement of receipt.
Note: The financial measures benefiting pregnant or breastfeeding women are subject to a minimum condition of affiliation to the social security system. Accordingly, to be compensated by the National Health Fund during maternity leave, the women concerned must be affiliated for at least six months during the year preceding the maternity leave.
A minimum affiliation of six months out of the 12 months preceding the maternity leave is also required to obtain compensation for the following situations:
where a loss of income occurs from the transfer from a night shift to a day shift (See “Is a pregnant woman required to work at night?”)
in the event of exemption from work granted in connection with night work or work considered dangerous for a pregnant or breastfeeding woman (See “Are certain jobs considered dangerous for a pregnant or breastfeeding woman?”)
Night work is defined as the period between 10:00 pm and 6:00 am.
A pregnant woman is only exempted from night work if she expressly requests it from her employer and if there is a risk to her health or safety.
Following the employee’s request, an employer must refer the matter to the occupational physician for an opinion.
If there is no risk, the woman may continue to work at night. If there is no risk, the employer is obliged to transfer her to a day shift with continued pay.
If such a transfer is not possible, the occupational physician will prescribe an exemption from work for the woman concerned. During this period, she will no longer be paid by the employer, she will receive a maternity allowance from the National Health Fund.
It should be noted that the same protection applies to breastfeeding women, but only until the child’s first birthday.
Is some work considered dangerous for a pregnant or breastfeeding woman?
The law identifies several jobs that it classifies as hazardous to the health and safety of a pregnant or breastfeeding woman.
These jobs considered as dangerous are classified in two categories.
The first includes tasks such as lifting loads more than five kilograms, work involving the risk of falling or slipping, and work requiring assuming a squatting or bending position continuously.
The second category includes work that brings the woman into contact with chemicals such as lead or biological agents such as toxoplasma or the rubella virus.
The employer is responsible for drawing up a list of work that pregnant women are not required to do and for including in this list an inventory of the measures taken to eliminate any risks to their safety and health. This document must be communicated to all women employed in the company, and to the staff delegation and the equality delegate, if any.
What steps should be taken if a pregnant or breastfeeding woman is in a dangerous job?
While for the first category of work, protective measures must only be taken if a health risk is established by the occupational physician, the second category of work is qualified as dangerous to such an extent that a simple risk of exposure to this work is sufficient to trigger the protective mechanism.
The protective measures to be taken by the employer are as follows:
for Category 1 work: the employer must first try to eliminate the health risk by adapting the workstation. If this is not possible, the employer must transfer the woman concerned to another job. If no job is available, the employer must grant an exemption from work.
for Category 2 work: the employer must immediately assign the woman to another job and, if no job is available, grant an exemption from work.
If a woman is exempted from work, the pregnant or breastfeeding woman will receive a cash maternity allowance from the National Health Fund.
It is best for the employer to contact the occupational physician as soon as the pregnancy certificate is received.
A female employee is protected against dismissal from the day she submits her pregnancy certificate to the employer until 12 weeks after the birth.
During this period, the employer is prohibited from notifying the employee of the termination of the employment relationship and from summoning her to a preliminary interview. Any dismissal or invitation to a preliminary interview served in violation of this prohibition is null and void.
In the event of notification of termination before the submission of a medical certificate attesting to her pregnancy, the female employee may, within eight days of receiving her letter of dismissal, justify her condition by producing a certificate by registered letter. The employer must then cancel the dismissal and reinstate her.
If the employer persists in his intention to terminate the contract of the pregnant employee, the employee may, within 15 days of the termination of her employment contract, apply to the Chief Judge of the Labour Tribunal to rule that the dismissal is null and void, with a view to ordering her retention or even reinstatement in the company.
After this period, the pregnant woman can no longer claim that the dismissal is null and void, but she can, if necessary, take legal action for unfair dismissal in accordance with the legal forms and time limits.
A pregnant woman is protected against dismissal with notice, but she can be dismissed with immediate effect if she commits a serious offence.
However, the employer cannot send the letter of dismissal on his own initiative.
He must apply to the Labour Tribunal for permission to terminate the employment contract.
If an employer has dismissed this woman pending the court’s decision, she may, upon application to the court within 15 days of notification of the dismissal, be entitled to continued remuneration pending the court’s final decision.
Is part of the prenatal maternity leave lost if the birth takes place before the expected date?
If the birth takes place before the expected date shown on the pregnancy certificate issued by the doctor, the part of the 8 weeks’ prenatal leave not taken is not lost.
The days in question are simply added to the postnatal leave, which is thus extended.
Does the period of maternity leave entitle her to days off?
Yes, the period of maternity leave is treated as a period of actual work and therefore entitles a woman 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 of the following year.
Is the employee's length of service interrupted due to maternity leave?
No, maternity leave leaves the employee’s length of service intact and therefore continues to run. The law even expressly provides that the period of maternity leave is taken into account to determine the employee’s rights related to seniority (e.g. payment of a bonus, gratuity or a 13-month period depending on the years of service).
The employee also retains all the benefits she had acquired before the start of the maternity leave.
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. She receives a maternity cash benefit equal to the sickness cash benefit, which in principle corresponds to her previous salary, with a ceiling of 5 x the minimum social wage (see Social parameters).
The current legislation makes entitlement to the cash maternity allowance conditional on the employee’s compulsory membership of Luxembourg social security institutions for at least six months during the 12 months preceding maternity leave.
The self-employed insured person is entitled to the same benefit if she has been affiliated with the insurance system for at least six months in the year preceding the start of her maternity leave.
Maternity benefit cannot be combined with sickness benefit or with other professional income.
(Last update: 4 January 2021)
Can the employee decide not to return to work at the end of her maternity leave?
An employee who decides at the end of her maternity leave not to return to work to look after her child can resign without having to give any notice to her employer.
However, it should be stressed that resignation without notice is only available to women who decide to give up their jobs to devote themselves fully to raising their children. It is not possible for women who, at the end of their maternity leave, want to change employer.
Following her resignation, can the employee change her mind and return to work?
The employee has priority for re-employment.
This means that for one year after her departure, she can ask her employer to rehire her.
For one year from this request, the employer is then obliged to hire the employee concerned as a matter of priority if new staff is recruited at her level of qualification.
However, the employee has no guarantee of being taken back by her employer, so this period is not unpaid leave.
If an employee is rehired, the law guarantees her all the benefits she enjoyed at the time of her departure.
Does a breastfeeding employee get breastfeeding time during the working day?
A breastfeeding woman shall, at her request, be allowed two 45-minute periods of breastfeeding during the working day, to be taken at the beginning or end of her normal daily working hours.
If the working day is only interrupted by a one-hour break, the two periods can be reduced to a single 90-minute breastfeeding period. This is also the case if it is impossible for the pregnant woman to breastfeed her child in the vicinity of the workplace.
Note: that breastfeeding time is counted as working time and with normal pay.
At the employer’s request, the breastfeeding woman must provide a medical certificate attesting to her breastfeeding.
However, the employer’s request should not be repeated at too short intervals.
Can a pregnant woman go for medical check-ups during working hours?
The law provides for a number of medical examinations that the pregnant woman must undergo during her pregnancy in order to receive the birth grant.
Dental examination: at the latest by the end of the fifth month of pregnancy;
First medical examination: before the end of the third month of pregnancy;
Second medical examination: at the latest in the second half of the fourth month of pregnancy;
Third medical examination: during the 6th month of pregnancy;
Fourth medical examination: in the first two weeks of the eighth month of pregnancy;
Fifth medical examination: in the first two weeks of the ninth month of pregnancy.
As long as the pregnant employee is not on maternity leave, she will be entitled to leave work for the time necessary for these medical examinations.
Should we distinguish between children and adolescents?
The Labour Code distinguishes between children and adolescents:
“Children” means all young people who have not reached the age of 15 years or who are still subject to compulsory schooling under the applicable legislation
“Adolescents” means all young people who are at least 15 years of age and under 18 years of age and who are no longer subject to compulsory education under the applicable legislation
In general, it is forbidden to employ children up to the age of 15 years in work of any kind.
However, this prohibition does not apply to work in technical and vocational schools or to assistance given in the household by children who are members of the family.
The employer shall take the necessary measures for the protection of the safety and health of young people, taking particular account of specific risks. Health assessment and surveillance is carried out by the occupational health services.
It is prohibited to employ young people in work that exposes them to specific risks to their safety, health, physical, mental, spiritual, moral or social development or that is likely to compromise their education or vocational training, resulting from a lack of experience, lack of awareness of existing or potential risks.
The participation of children, for profit or in a professional capacity, in audio-visual, cultural, artistic, sporting, advertising and fashion activities is prohibited.
Employers wishing to employ young people under the age of 18 (but at least 15 years old) have a few obligations to fulfil.
The work of adolescents shall be permitted only on condition that it does not involve economic exploitation of young people, does not harm their health and safety or their physical, mental, spiritual, moral, and social development, and does not jeopardise their education and training or their participation in vocational guidance or training programmes approved and supervised by the competent authorities or their ability to benefit from the instruction received.
Risk assessments
The employer must assess the risks to young people of the work required.
The assessment should be carried out before young people start work and whenever there is a significant change in working conditions and should include the following:
equipment and layout of the workplace and workstation;
the nature, degree, and duration of exposure to physical, biological, and chemical agents;
the fitting out, selection and use of work equipment, in particular agents, machines, appliances and devices, and their handling;
the conception of work processes and workflows and their interaction (work organisation);
the status of training and information of the young people.
Where this assessment has revealed the existence of a risk to the safety or health, or the physical, psychological, mental, moral, or social development of young people, free and appropriate health assessment, and surveillance of young people at regular intervals must be carried out by the occupational physician.
Before the signature of an employment, apprenticeship, or traineeship contract, or otherwise before the young people start work, employers shall inform them in writing of any risks and of all the measures taken regarding their safety and health. At the same time, employers shall inform the Health and Safety representative in writing of any risks and of any measures taken regarding the safety and health of young people.
Appropriate instructions
Upon entry into service of young persons, the employer or his representative is required to give them appropriate instructions on:
their work to be carried out;
the work rules;
safety measures and devices and protective equipment to ensure their safety and health;
the observance of health and safety measures and the prevention of occupational diseases and other work-related illnesses.
Special instructions should be given to adolescents if they are to be introduced to hazardous work during their vocational training.
The Health and Safety representative and the Designated worker attend the above instructions.
Register
Every employer who employs adolescents must keep a register in which certain data are recorded, such as the nature of the occupation, days of leave, working hours, dates of scheduled medical examinations.
The Inspectorate of Labour and Mines and the Health Directorate of the Ministry of Health, each acting within their respective legal competences, are responsible for monitoring the implementation of the legal provisions.
Free health assessment and surveillance of young workers is provided by the occupational health service in accordance with the provisions of the Labour Code.
Every employer who employs one or more adolescents must keep a register in which the dates of the medical examinations provided for in the Labour Code and the last medical certificate issued by the competent health service are recorded.
If hired before the age of 18, at least two periodic examinations must be done before the age of 21.
If hired after the age of 18, at least one periodic examination must be done before the age of 21.
In addition, the Labour Code imposes a medical examination on pupils and students as long as they are working in a risky job.
For the application of the legislation concerning the placement and vocational rehabilitation of disabled workers, the law considers the following persons as disabled.
An injured worker
The law considers an injured person to be a person who, as a result of an accident at work, has suffered a reduction in his or her working capacity of at least 30%.
A war invalid
The law considers a war invalid to be any person who, as a result of wartime events or measures taken by an occupier, has suffered a reduction in working capacity of at least 30%.
A physically impaired person
The law considers a physically disabled person to be any person with a physical, psychological, mental or sensory disability whose working capacity has been reduced by at least 30% as a result of natural or accidental causes
The law authorises recognition of the status of disabled worker to Luxembourg nationals, workers from a Member State of the European Union or a State that has acceded to the Agreement on the European Economic Area, stateless and refugee workers, non-nationals from an EU Member State who work for a company legally established on Luxembourg territory or who are registered as jobseekers with the employment offices of the National Employment Agency.
How can a person be granted disabled worker status?
The Medical Commission, composed of 5 specialised doctors, has the task of determining the applicant’s degree of disability and deciding whether they can be granted disabled worker status or severely disabled income.
The representative of the Minister of Health shall chair the Medical Commission.
The Medical Commission:
decides on the granting, refusal or withdrawal of recognition of this status;
may call in an expert and has the right to obtain from public bodies any document that is useful or essential for a comprehensive analysis of the applicant’s situation;
may interview and examine a worker;
determines an applicant’s diminished capacity to work and makes a decision on that person’s residual capacity to work and his or her state of health;
determines whether an applicant is eligible for the severely disabled income.
The law of September 12, 2003 concerning disabled persons introduced the possibility of obtaining an income for severely disabled persons who are unfit for the ordinary or protected labour market.
Income for the severely disabled:
can be awarded directly by the Medical Commission for people whose health condition is so impaired that work is impossible in the ordinary labour market, only in a protected workshop
may be awarded indirectly by the National Employment Agency to disabled workers who, for reasons beyond their control, do not have access to paid employment and have resources below the level of the income of the severely disabled
What measures can be taken for training, rehabilitation, re-education, integration and reintegration into employment?
The Guidance and Occupational Reclassification Committee determines the applicant’s possibilities for rehabilitation or vocational re-education according to age, degree of disability, nature of the disability, previous abilities and submits its guidance and reclassification proposal to the Director of the National Employment Agency for decision.
In particular, the Guidance Committee may recommend the following measures to the Director of the National Employment Agency, depending on the age of the applicant, the degree or nature of his or her disability, and in the light of his or her previous or residual working capacities:
guidance, training and rehabilitation measures;
integration and professional reintegration measures;
employment initiation measures or work adaptation/rehabilitation courses.
These measures may include a contribution to salary, a contribution to training costs, an incentive or rehabilitation allowance, the payment of costs relating to the adaptation of workstations and access to work, a contribution to transport costs or providing special work equipment.
What is the procedure for the recognition of the status of disabled worker and the application for the severely disabled income?
Applications for recognition as a disabled worker and/or applications for income for the severely disabled should be addressed to the specially assigned medical commission.
In order to be recognised as a disabled worker, applicants must submit the following documents to the secretariat of the Commission:
Documents providing information on the applicant’s professional situation and qualifications
if the applicant works for a company legally established on Luxembourg territory, the application must be accompanied by the following documents:
a copy of the employment contract with his/her current employer whose company is legally established in the Grand Duchy of Luxembourg
a valid work permit issued in accordance with the amended law dated 28 March 1972 on the employment of foreign workers and the Grand-Ducal regulation dated 12 May 1972 determining the measures applicable to the employment of foreign workers in the territory of the Grand Duchy of Luxembourg or an equivalent certificate
a certificate of affiliation issued by the Joint Social Security Centre
any document providing information on the applicant’s professional qualifications, such as education or training certificates, diplomas and information regarding the work and duties performed by the applicant for the employer
a copy of the recent fitness certificate issued by the competent occupational physician
if the applicant is a jobseeker, the application shall be accompanied by the following documents:
a certificate of registration issued by the placement service of the National Employment Agency of the Grand Duchy of Luxembourg
any document providing information on the applicant’s professional qualifications, such as certificates of education or training, diplomas and information on the work and duties performed by the applicant before registration with the National Employment Agency
a certificate of compulsory affiliation issued by the Joint Social Security Centre.
Documents providing information on the applicant’s reduced capacity to work and general state of health
a recent and detailed medical report drawn up by the doctor treating the applicant, specifying the presumed causes of the alleged reduction in the applicant’s capacity to work and including, where appropriate, details of the applicant’s state of health and the foreseeable development of that person’s state of health. The medical report may be supplemented by a report from an occupational psychologist at the request of the medical committee
a recent and detailed medical report drawn up by the National Employment Agency’s occupational physician, indicating the applicant’s reduced capacity for work and stating whether the person is fit for employment in the ordinary labour market or in a protected workshop, if the applicant is a job seeker.
A certificate of nationality or equivalent
Documents proving the capacity of legal administrator or legal representative where applicants need to be represented in their acts
If the applicant is a protected adult within the meaning of the legal provisions of Title XI of Book 1 of the Civil Code, the application must be accompanied by a copy of the judgment or an extract from the civil register or an equivalent certificate proving a legal representative’s status with regard to the applicant.
In order to obtain the severely disabled income, applicants must produce the following supporting documents:
a birth certificate or equivalent evidence that the applicant is at least 18 years old at the time of application for income support
documents providing information on applicants’ reduced capacity to work and general state of health
a recent and detailed medical report drawn up by the doctor treating an applicant, specifying the presumed causes of the applicant’s incapacity for work, establishing that the impairment was acquired before the age of 65 and, where appropriate, giving details of the applicant’s state of health and the foreseeable development of that person’s state of health
a recent and detailed medical report drawn up by the occupational physician of the National Employment Agency
a certificate of nationality or equivalent
documents attesting to the status of legal representative where applicants need to be represented in their acts
a recent certificate of residence issued by the municipality of the applicant’s residence
Which employer is obliged to reserve jobs for disabled workers?
The following are required to give priority to employment of disabled workers:
In the public sector
the State;
the municipalities;
the national rail service, Société nationale des chemins de fer luxembourgeois;
public institutions.
The number of disabled people to be employed: 5% of the total workforce.
In the private sector
For companies regularly employing at least 25 workers, the number of disabled persons to be employed changes as follows: