What does the Social Security Medical Board (CMSS) do with a long-term sick employee?
A person who is on sick leave for several weeks may present:
an acute illness
a chronic pathology
a permanent disability or temporary disability
total incapacity or incapacity to work with regard to his or her the last job
Until 1 September 2015, if the periods of incapacity for work amounted to six weeks in a reference period of 16 weeks, the National Health Fund requested the insured person to submit a detailed medical report completed by his or her doctor by letter.
A detailed medical report means the report on prolonged incapacity for work provided for in the nomenclature of medical acts and services (R4) or any other detailed medical report sent to the Social Security Medical Board (CMSS) and accepted as such by it.
Since 1 September 2015, the CMSS uses the detailed medical report more selectively, deciding on a case-by-case basis to request the report and/or to summon the insured person. CMSS determines whether the insured person should be covered by the National Health Fund.
Before the expiry of the employee’s entitlement to compensation (78 weeks out of a reference period of 104 weeks), CMSS must refer the insured person to an appropriate care system.
What happens if CMSS considers the employee fit for work?
If, after reading the detailed medical report and/or summoning the employee, the CMSS is of the opinion that the employee is fit to work, the financial compensation is no longer paid by CNS.
Note: there are other reasons for stopping the monetary compensation:
an employee fails to appear at the medical examination without good reason
the employee stays abroad without prior permission from the CNS
the employee is in custody
the employee does not provide all the information, documents and evidence requested by the National Health Fund or the Social Security Medical Board.
This decision is binding in labour law matters and automatically terminates the right to continued payment of wages or the right to sick pay, depending on whether the burden is on the employer or the National Health Fund.
The employer will be notified of the CNS’s decision and shall be ordered to stop paying the sick employee.
An appeal may be made to the Steering Committee of the National Health Fund within 40 days of notification, and then to the social security courts (Social Security Arbitration Tribunal in first instance and Higher Council of Social Security in appeal).
The CNS informs the employer if the employee is appealing the refusal decision.
What happens if CMSS considers that the illness is lasting?
CMSS may also come to the conclusion that the illness is lasting, with the consequence that the financial compensation is paid or even continued under the health insurance scheme.
When an employee’s incapacity for work, as determined by his or her attending physician, is confirmed by the medical officer of the Social Security Medical Board, it cannot be contradicted by other medical examinations at the employer’s request.
The CMSS may, if necessary, summon the insured person to a subsequent medical examination.
In all cases, entitlement to sick pay is limited to a total of 78 weeks in a qualifying period of 104 weeks.
Insured persons are considered to be disabled if, as a result of prolonged illness, infirmity or fatigue, they have suffered a loss of working capacity such that they are unable to carry out the occupation they last exercised or another occupation corresponding to their strength and aptitudes.
When the CMSS establishes an incapacity for work in relation to the general labour market, the insured person is considered to be disabled. The CMSS recommends that the insured person to apply for an invalidity pension from the competent pension body, the National Pension Insurance Fund (CNAP) for employees.
The invalidity pension is only granted on the basis of a formal application by the person concerned. The application form can be downloaded from the CNAP website and should be returned by post.
For cross-border workers whose last place of work was not in Luxembourg, it is recommended that they apply to the competent administration in their place of residence.
Note: if the illness is prolonged and there is no prospect of returning to work without CMSS intervening, it is advisable to apply for an invalidity pension yourself in order to preserve your rights beyond the 18 weeks of illness.
What happens if CMSS recommends internal or external reclassification?
If the CMSS considers that the person concerned is likely to be unable to perform the duties of his or her last job, it will, in agreement with the person concerned, refer the matter to the Joint Committee and the competent occupational physician.
What is the Joint Committee?
The Joint Committee was established by a 2002 law under the Minister of Labour and Employment. Its task is to decide on the internal or external reclassification of workers deemed incapable of performing their last job by the CMSS.
Since 1 January 2016, it takes decisions on the internal or external professional reclassification of employees, the status of person undergoing professional reclassification, the professional transitional allowance, the compensation tax and the compensatory benefit and rehabilitation or retraining measures.
As of 1 November 2020, the Joint Committee will only decide on the internal or external reclassification of employees, the status of reclassification, the adjustment of working hours, the compensation tax and rehabilitation or retraining measures for persons undergoing internal reclassification.
Decisions following internal or external reclassification fall within the competence of the National Employment Agency (ADEM). Decisions to refuse to grant, withdraw or recalculate the compensatory benefit, decisions to refuse to grant, recalculate or temporarily or permanently withdraw the professional transitional allowance and decisions to refuse to grant, withdraw, fix or adjust the wage share of workers undergoing internal reclassification or benefiting from the status of externally reclassified person are taken by the director of ADEM and may be subject to a request for review by a special commission.
The request for review must be substantiated and submitted by registered letter within a period of 40 days from the date of notification of the decision, failing which it shall be cancelled.
It consists of :
two representatives of insured persons
two employers’ representatives
a representative from CMSS
a representative from the Health Directorate, Occupational Health Division
a representative of the Minister for Labour and Employment
a representative from the National Employment Agency
Who can refer a case to the Joint Committee?
Until 31 December 2015, referral to the Joint Committee was only made by the Social Security Medical Board.
Since 1 January 2016, a new avenue to the reclassification procedure has been introduced in the framework of the occupational physician’s medical examinations.
When occupational physicians declare an employee unfit for the last position held following an occupational medicine examination (periodic examination, resumption examination or examination at the request of the employer or the employee), they may refer the matter to the Joint Commission with a view to professional reclassification, provided that the employee is in possession of a certificate of fitness for the position or has at least three years’ seniority in the company.
The referral to the Joint Committee by the occupational physician differs depending on the size of the company:
For companies with at least 25 employees, occupational physicians refer the matter directly to the Joint Committee and inform the employer and the employee
If a company has fewer than 25 employees, occupational physicians may refer the matter to the Joint Committee provided the employee agrees.
Note: an occupational physician’s findings may incite a request for review by both the employee and the employer to the chief physician of the Occupational Health Division. This remedy does not exist for reports referred to the Joint Committee.
What are the remedies against a decision of the Joint Committee?
Decisions of the Joint Committee may be appealed to the Social Security Arbitration Board within 40 days of their notification, by written request to be submitted to the headquarters of the Arbitration Tribunal. An appeal may be lodged with the Higher Social Security Council within 40 days of notification of the ruling of the Social Security Arbitration Council, by written request to be submitted to the headquarters of the Higher Council.
In the case of a long-term illness, the Joint Committee is, in principle, referred to by the CMSS, with the agreement of the person concerned in order to ensure the informed consent of all parties. CMSS informs the employer concerned by sending a copy of the referral document.
The Joint Commission examines the files submitted to it by the occupational physician within 40 days, with a view to taking a decision on occupational reclassification.
The Joint Commission has 40 days from the date the opinion of the occupational physician is given, whereas previously this period ran from the day of referral.
Employers may not notify employees with an employment contract of the termination of their contract during the period between the day of referral to the Joint Committee by the CMSS or the occupational physician and the day of notification of the Joint Committee’s decision.
Any dismissal notified by the employer or, where applicable, a summons to the preliminary interview is to be considered null and void, as from the day of the referral to the Joint Committee.
Within 15 days of the termination of the contract, an employee may ask the Chief Judge of the Labour Tribunal to declare the dismissal null and void and to order its continuation or, where appropriate, the employee’s reinstatement.
The order of the Chief Judge of the Labour Tribunal is provisionally enforceable. An appeal may be launched against it within 40 days of notification through the registry before the magistrate presiding over the chamber of the Court of Appeal to which appeals in labour law matters are assigned. The decision shall be taken through urgent proceedings, the parties being heard or duly summoned.
Having an employment contract at the time of the referral to the Joint Committee is the mandatory precondition for internal reclassification.
This excludes REVIS beneficiaries and recipients of unemployment benefit.
An employer who, on the day of the referral to the Joint Commission, has a workforce of at least 25 employees who does not have the number of employees internally or externally reclassified up to the limits of the rates applicable to disabled employees, is obliged to reclassify an employee internally.
For the purposes of compliance with this obligation, employees who have been reclassified internally or externally are again treated as disabled employees. It is up to the employer to provide proof of compliance with the obligation.
For companies with multiple establishments, this reclassification obligation applies to each establishment individually.
The Joint Committee may dispense with internal job reclassification if the employer submits a reasoned case to that effect and proves that such reclassification would cause serious prejudice.
Internal reclassification takes place in another job and/or under another working regime. The fitness for this new position must be established by the occupational physician. This finding of suitability for the modified post is considered proof that the employer has fulfilled his obligation to reclassify internally.
On the advice of the occupational physician, the internal occupational reclassification may include a reduction in working time which may not exceed 20% of the working time set in the employment contract in force before the first decision on occupational reclassification.
The Joint Committee decides on the reduction of working time. It may seek the opinion of ADEM’s occupational physician on the reduction in working time proposed by the competent occupational physician.
However, in exceptional cases, this reduction may be increased to 75% of the initial working time, by decision of the Joint Committee, on the advice of the occupational physician of the National Employment Agency (ADEM). The employer or the employee must submit a reasoned request to this effect following the opinion of the competent occupational physician. The claimant must enclose with the application proof that the employee or the employer has been duly informed of the application, otherwise the application will not be admissible.
Any difference between the former and the new remuneration of the reclassified employee will be paid to him/her in the form of a compensatory benefit.
Since 1 January 2016, the calculation of the compensatory benefit has been simplified by taking as a reference the income liable to contribute to the pension insurance. The compensatory benefit is the difference between the average monthly income subject to pension insurance contributions achieved during the 12 calendar months preceding the decision to reclassify and the new monthly income subject to pension contributions.
A law of 24 July 2020 has reshaped the calculation of the compensatory benefit (see Socionews n°9-2020, link below)
ATTENTION: The request to obtain a compensatory benefit must be submitted to ADEM rather than to the Joint Committee within 6 months of the date on which the amendment to the employment contract began to be executed, failing which it will be cancelled.
Following a decision to reclassify internally, the employee is protected against dismissal until the end of the 12th month following the notification to the employer of the decision to reclassify internally.
Within 15 days of the termination of the contract, the employee may ask the Chief Judge of the Labour Tribunal to declare the dismissal null and void and to order its continuation or, where appropriate, the employee’s reinstatement.
The Joint Committee cannot decide on a new reclassification of an employee within one year of the reclassification decision.
Employees undergoing internal redeployment who lose their job because of an employer’s going out of business or because of collective redundancy are entitled to refer the matter to the Joint Committee within 20 days of the end of the employment contract for external redeployment.
The Joint Committee then refers the matter to the occupational physician, who sends the Joint Committee his or her reasoned opinion on the residual capacities of the reclassified person.
If the person has not recovered the necessary abilities to perform the tasks corresponding to the last job held before the decision to reclassify the person’s job internally, the Joint Committee decides on external reclassification, which entitles this person to protective status.
However, if the occupational physician finds that the reclassified person has recovered the necessary work capacity to occupy a position like his or her last position prior to the decision on occupational reclassification, the Joint Committee shall reject an external occupational reclassification.
External reclassification consists of reclassification on the labour market.
An employee who is not to be considered disabled, but who, due to illness or infirmity, is unable to perform the tasks corresponding to his or her last job, may benefit from external professional reclassification, as well as from the status of a person undergoing professional reclassification. Employees who have been in their last job for less than three years are eligible for occupational reclassification only if they are in possession of a certificate of fitness for the job, issued by the competent occupational physician at the time of recruitment to this last job. The competent occupational physician informs the Joint Committee of this when the matter is referred to it.
However, the conditions of seniority and the requirement of a certificate of competence are not required for:
a beneficiary of an invalidity pension who was granted it immediately following the exercise of an activity as an employed person and from whom it was withdrawn under Article 193 of the Social Security Code on the grounds that the person no longer fulfils the conditions laid down in Article 187 of the same Code, but who is unable to perform the tasks corresponding to the last position held
an employee who is unable to perform the tasks corresponding to the last job, mainly due to the after-effects of an accident at work or an occupational disease recognised under the provisions of the Social Security Code, which occurred during the period of membership, and which entitles the employee to a partial pension or a bridging allowance
the beneficiary of a full pension resulting from an allocated salaried activity who has his pension withdrawn because he is no longer totally incapacitated for work, but who is unable to perform the tasks corresponding to his last job.
An employer who, on the day of the referral to the Joint Commission, has a workforce of at least 25 employees and who does not have the number of employees who are eligible for internal or external reclassification up to the limits of the rates applicable to disabled employees, is obliged to reclassify the employee internally.
For the purposes of compliance with this obligation, employees who have been reclassified internally or externally are again treated as disabled employees.
It is up to the employer to provide proof of compliance with the obligation.
For companies with multiple establishments, this reclassification obligation applies to each establishment individually.
The Joint Committee may dispense with internal job reclassification if the employer submits a reasoned case to that effect and proves that such reclassification would cause serious prejudice.
When the Joint Committee decides on an external reclassification, the employer must pay the employee a lump-sum compensation which varies according to the employee’s length of service as follows:
1 month’s salary after at least 5 years of continuous service
2 months’ salary after at least 10 years’ continuous service
3 months’ salary after at least 15 years’ continuous service
4 months’ salary after 20 years’ continuous service and more
The text also specifies that length of service is assessed on the date of notification of the decision to reclassify the employee’s job and provides all the details concerning the calculation of the compensation to be paid: this compensation is calculated based on the gross salaries actually paid to the employee for the last 12 months immediately preceding that of the notification of the decision to reclassify the employee’s job.
The salaries used to calculate the lump-sum allowance include sick pay and current bonuses and supplements, but exclude overtime pay, bonuses and any allowances for incidental expenses incurred.
To these employers no reimbursement from the Employment Fund is due.
The decision on external reclassification leads to the automatic termination of the employment contract.
Workers are automatically registered as jobseekers with ADEM from the day following notification of the decision. They are managed by the department handling workers with reduced capacity. Initially, they will receive unemployment benefits from ADEM for a maximum of 12 months, with possible extensions.
In the event of redeployment to a job offered by ADEM where the salary is lower than the previous salary, the employee may be entitled to a compensatory benefit under the same conditions applicable to an internal redeployment.
Otherwise, after having exhausted their unemployment benefits, they will have to apply for a bridging allowance via a form issued by ADEM.
This bridging allowance is paid until a reclassified employee finds a job or reaches the age of pension award.
This bridging allowance is reserved for employees having the status of a person undergoing professional reclassification who can claim to be fit for their last job for at least five years, as established by the occupational physician, or to have at least five years’ seniority.
The application for a bridging allowance must be submitted to ADEM within six months of the end of the statutory period of payment of the full unemployment benefit, including the extension period, failing which it will be cancelled.