Last updated more than 5 years ago
As part of the fight against the spread of Covid-19, certain time limits concerning the procedure for external or internal redeployment have been suspended or increased.
Any entitlements to the tideover allowance which will expire between 18 March 2020 and the last day of the month in which the state of crisis ends will be extended until the end of the following month.
An employee may be granted the status of a person on external job redeployment if, for health reasons, they are declared unfit to perform their previous job, and they could not be redeployed internally by their employer.
This status is intended to facilitate reintegration into the job market of employees who, despite their handicap, cannot claim disability pension.
The status is granted by the Joint Committee (Commission mixte), which comprises, among others, employee and employer representatives, and representatives from the National Employment Agency (Agence pour le développement de l'emploi - ADEM) and the National Health Directorate (Direction de la Santé).
Who is concerned
Employees who are incapacitated for work and who the Social Security Medical Board (Contrôle médical de la sécurité sociale - CMSS) deems incapable of occupying their former position, but who are not considered invalid, may be entitled to external job redeployment if they have not been redeployed within their employer's business.
To be entitled to external job redeployment, an employee who has been employed in a position for fewer than 3 years must possess a certificate of capacity for the position in question, issued by the relevant occupational health practitioner when the employee was hired for the position.
The following may also be entitled to external job redeployment:
- the beneficiary of a disability pension from whom that pension was withdrawn on the grounds that they are no longer considered disables, but who is nevertheless still unable to occupy their previous position;
- the beneficiary of a health-insurance or accident-insurance benefit, whose employment contract was terminated after the 26th week of incapacity for work, or whose employment contract came to an end for a reason beyond their control, and who is not considered an invalid, but is unable to occupy their previous position;
- the beneficiary of a full benefit from whom the latter is withdrawn on the grounds that they are no longer totally unable to work, but who is still unable to occupy their former position;
- the beneficiary of an internal redeployment decision, when their employer refuses to enact that internal redeployment;
- the beneficiary of an internal redeployment decision who loses their job due to the cessation of their employer's business, or to collective redundancy, provided they make representations to the Joint Committee (Commission mixte) within 20 days of the end of their employment contract.
In terms of the rules on external job redeployment, cross-border employees are treated in the same way as employees who are resident in Luxembourg.
How to proceed
After six weeks of incapacity for work, the CMSS assesses the affected employee's condition with a view to directing them to the most appropriate support system.
If the worker's incapacity to continue work in their last job is established, the CMSS, with the agreement of the insured employee, refers the case to the Joint Committee and the relevant occupational health practitioner, and informs the employer thereof.
The occupational health practitioner summons and examines the worker.
There are then three possible scenarios:
- the occupational health practitioner establishes the employee's incapacity for work in their last job. The case is referred to the Joint Committee, which decides on the type of redeployment (internal or external;
- the occupational health practitioner establishes the employee's incapacity for work in their last job and returns the case to the Joint Committee, which then decides to refuse job redeployment. This decision puts an end to the sickness benefits or to the full accident insurance allowance, taking effect on the date when the worker was summoned to the medical examination by the occupational health practitioner.
- the worker fails to attend the medical examination by the occupational health practitioner within the required time frame without a valid reason. In this case, the occupational health practitioner would inform the Joint Committee and the CMSS of such non-attendance. The Joint Committee would then refuse job redeployment. This decision puts an end to the sickness benefits or to the full accident insurance allowance, taking effect on the date when the worker was summoned to the medical examination by the occupational health practitioner.
In the event of job redeployment, the occupational health practitioner expresses their an opinion on:
- the employee's residual work capabilities;
- a possible reduction in work hours or a decrease in the requested work output;
- a possible adaptation or adjustment of the employee's job;
- the temporary or permanent nature of the incapacity for work;
- the periodicity of reassessments of the employee's medical condition.
The Joint Committee can prescribe rehabilitation or retraining measures. Workers must take these measures or risk losing their status through a decision by the Joint Committee.
Decisions handed down by the Joint Committee can be appealed before the Council of Arbitration of Social Security (Conseil arbitral de la sécurité sociale) within 40 days of the notification of the decision. The employment contract is suspended until the final outcome has been decided upon.
Automatic registration with the ADEM and receipt of unemployment benefit
When the Joint Committee redeploys a worker externally to the job market, the person concerned is automatically registered as a job seeker with the Department for Workers with Reduced Working Capacity (Service des salariés à capacité de travail réduit) at the ADEM, effective from the day after the notification of the Joint Committee's decision.
They are paid full unemployment benefit as long as they have not found a new job.
Rights and duties attached to the status of an externally redeployed worker
If they accept a new job, the employee retains their rights as an externally redeployed worker, as long as they have not recovered the working abilities needed to perform the tasks required for the last job they held before the decision.
While they are unemployed, their continuing status is subordinate to their continued registration as a job seeker with the ADEM.
The status holder may be assigned to public service works on behalf of the State, local authorities, communal associations, public institutions and foundations.
Periodic medical reassessment by the occupational health practitioner
An externally redeployed person may be reassessed by the relevant occupational health practitioner if they find another job, or by the ADEM's health practitioner if they are still without work:
- either based on the frequency specified in the opinion submitted following the referral of the case (if, during the first examination, the health practitioner considered the restrictions to be temporary and had specified a date for reassessment, within 2 years);
- or at the request of the Chair of the Joint Committee.
If the worker has returned to work and a reduction in working time or further adaptation of the working environment is needed, the occupational health practitioner refers the case to the Joint Committee for a decision on such adaptations.
When the occupational health practitioner finds that the reduction in working time is no longer medically justified, either partially or wholly, the case is referred to the Joint Committee, which will rule on the employee's working time. This decision only enters into force after a notice period of six months from the time of its notification.
If the occupational health practitioner finds that the externally redeployed worker has recovered the necessary working abilities to perform tasks similar to those corresponding to the last position they held before the decision to redeploy them externally, the case is referred to the Joint Committee, which will then decide on the withdrawal of the status and the payment of the compensatory benefit or the occupational 'tideover' benefit. This decision only enters into force after a notice period of six months from the time of its notification.
Workers who fail to attend the medical reassessment risk losing their status as an externally redeployed worker, as well as their entitlement to the related cash benefits, by way of a decision of the Joint Committee. Such a decision takes effect on the date on which it is notified.
Other financial benefits in case of external redeployment
When the worker on external professional redeployment takes up a new job with a lower salary than they earned from their previous employer, they are entitled to a compensatory benefit, equal to the difference between those two salaries, provided:
- they have been assigned to the new job by the ADEM;
- they have been declared fit for the new job following the pre-hire medical examination;
- their working time is equal to at least half that provided for by the contract in force before the initial decision to redeploy them. The required working time may be attained combining several job. At the employee's request specifying the grounds therefor, and after having sought the opinion of the ADEM's medical practitioner, the Joint Committee may reduce the required working time to 25 % of the initial working time.
The compensatory benefit ends when the right to the early retirement benefit, the disability pension, the early old-age pension or the old-age pension come into effect.
Occupational 'tideover' benefit
If, at the end of the legal duration of payment of unemployment benefit, including the extended period, the externally redeployment worker has not found a new job, under certain circumstances, they may receive an occupational 'tideover', subject to decision by the Joint Committee.
However, the worker must have been fit for their previous position for at least 10 years, as certified by the occupational health practitioner, or have been in the service of the employer for at least 10 years.
The amount of the benefit corresponds to 80 % of the average monthly salary subject to pension insurance contributions earned in the year preceding the decision to redeploy them, but may be no more than 150 % of the social minimum wage.
The recipient of the benefit must report to the relevant departments of the ADEM at the dates and times they are requested to do so.
If a meeting is missed without a valid excuse, the worker loses the right to the benefit for 7 calendar days and, in the event of a second missed meeting, they lose the benefit for 30 calendar days. Failure to attend three consecutive meetings leads to the permanent withdrawal of the occupational 'tideover' benefit. Temporary or permanent loss of the benefit is subject to decision by the Joint Committee.
The benefit ceases to be paid if the recipient finds a new job, or else when they become eligible, either in Luxembourg or abroad, for the early retirement benefit, disability pension, early old-age pension or old age pension.
The benefit may be rescinded by decision of the Joint Committee if the grounds upon which it was granted no longer apply, or if the beneficiary opts out of redeployment measures.