With the new law of 11 February 2022, the Luxembourg legislator has once again changed the rules of the game by amending the law of 17 July 2020 on measures to combat the COVID-19 pandemic. The measures to fight the pandemic have largely been relaxed, and now include the following (among others):
the CovidCheck regime is now optional at the workplace (but the 3G scheme remains applicable when the regime is used);
the 11.00 p.m. curfew applicable to bars, coffeehouses and restaurants has been lifted and certain exceptions have been introduced with respect to setting up and amending a work organisation plan (plan d’organisation du travail – POT);
sanitary requirements for gatherings have been relaxed.
To help our clients comply with their obligations and keep abreast of the challenges they face, we created a COVID-19 platform at the outset of the pandemic. It is updated regularly and responds to our clients’ most frequently asked questions about the “new normal”.
Here are some of the most recent answers we’ve been able to provide:
1. What are the applicable Covid rules for the workplace?
Starting on 11 February 2022 (and in theory, until 30 April 2022) carrying out the CovidCheck regime at the workplace is optional. If the CovidCheck regime is in place, there is no requirement to wear masks or stay 2 metres apart, although the Health Ministry still recommends that this be done.
If no CovidCheck regime is in place, face masks are mandatory in areas in which the public is free to circulate, in enclosed spaces and at gatherings over 10 people.
In general, the following rules apply for gatherings over 10 people:
- gatherings of 11 to 50 people: individuals must wear masks and keep at least 2 metres apart;
- gatherings of 51 to 200 people: additionally, individuals must be assigned seats;
- gatherings of 201 to 2,000 people: the CovidCheck regime must be used, or individuals must wear masks and be assigned seats at least 2 metres apart.
2. What are my obligations of notification and control as an employer under the CovidCheck regime?
Applying the CovidCheck regime at the workplace is optional.
Employers who want to apply this option must give prior notice to the competent authorities that they are using the CovidCheck regime. However, establishments or events or activities where it is required to set up a mandatory CovidCheck regime are excluded from this obligation to give prior notice (e.g. facilities open to the public, gatherings, protests and events, as well as certain sectors).
Because it is now voluntary to have a CovidCheck regime in place at the workplace, employers who choose this option are required to abide by the notification requirement.
If employers decide to keep the CovidCheck regime in place, they must also continue to check whether their employees have a valid certificate to access company premises.
However, employers are not required to ensure that certificates remain valid all day, nor to check when they will expire. Only a single check must be performed when an employee first enters the premises in order for the employer to satisfy its obligations under the CovidCheck regime. This control by the employer is therefore valid for the rest of the day. It is the employees’ responsibility to ensure that their certificates are valid.
If an employer does not wish to scan every employee’s certificate with the Covidcheck.lu app each day, it remains possible for the employer to draw up a list of certificate-holding employees with each person’s first name, family name and certificate expiry date. Employees must register for such lists voluntarily, and must not be compelled to do so. In the course of this process, employers must ensure that data protection requirements are met.
3. I want to apply the CovidCheck regime. Do I need the approval of the staff representatives?
In principle, for companies of less than 150 employees, employers are required to inform and consult the staff delegation and obtain the opinion of the company’s health and safety representative (délégué à la sécurité et à la santé) before implementing the optional CovidCheck regime. For companies with 150 employees or more, the staff delegation must agree to the implementation of the optional CovidCheck regime, according to the Labour Code.
However, please note that an agreement was reportedly reached between the social partners and the Luxembourg government on 11 February 2022, although it has not yet been published. It is said to provide that the staff delegation’s agreement must be obtained in order to apply the CovidCheck regime irrespective of the number of employees. For the present time, given the lack of clarity and established legal basis, it is our view that the safest approach would therefore be to obtain the prior agreement of the staff delegation (if any) as far as possible, in order to continue applying the CovidCheck regime.
Your contact for more details: employment@arendt.com
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