Being redeployed internally by an employer due to incapacity to perform a job

Internal professional redeployment applies to workers who are incapable of performing their previous job due to health reasons, disability or bodily wear and tear but who are are not eligible for the disability scheme. The purpose of redeployment is to ease the worker's professional reintegration within the company after a period of incapacity for work. Employees may be redeployed to another position or another work arrangement suited to their residual capacity.

Redeployment is granted by the joint committee, which includes the insured person's representatives at work, the employers, the National Employment Agency (Agence pour le développement de l'emploi – ADEM) and the National Health Directorate.

Who is concerned

Internal professional redeployment may be taken by employees who are still covered by their employment contract but who:

  • are unable to continue work in their last position following a prolonged illness, disability or bodily wear and tear but have not been granted disability status by the Social Security Medical Board (Contrôle médical de la sécurité sociale – CMSS). Workers who have been employed in a position for less than 3 years must, in order to benefit from professional redeployment, hold a certificate of capacity for this position, which must have been issued by the occupational health practitioner when the worker was hired for said position; or
  • be employed in a hazardous job and, without being considered disabled, be declared unfit for the position by the occupational health practitioner, on condition that they have at least 10 years' length of service with their employer.

Cross-border workers are treated in the same way as resident workers in the context of a professional redeployment measure.

The internal redeployment obligation depends on the size of the company.

How to proceed

Redeployment procedure

After the employee has suffered 6 weeks of incapacity for work, the CMSS assesses the employee's condition in order to direct 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.

In the case of employees who work in hazardous jobs and who are declared unfit for their position by the occupational health practitioner, the latter refers the case to the joint committee. When an employer has fewer than 25 workers, the occupational health practitioner must nonetheless obtain the prior consent of both the worker and the employer.

Following the referral of the case to the joint committee, the occupational health practitioner summons the worker to a medical examination.

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. The occupational health practitioner informs the joint committee and the CMSS hereof. 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.

Within the framework of internal redeployment, the worker's capacity to fill the new work position must be duly established by the competent occupational health practitioner. In order to do so, the employer must send the following documents to the occupational health practitioner:

  • the employer's application stating the worker's tasks and/or adjustments to the working conditions;
  • a copy of the decision by the joint committee.

The occupational health practitioner will then decide if a medical check is required to draw up the medical fitness certificate. The certificate attests that the employer has satisfied his obligations with respect to the redeployment.

The occupational health practitioner issues an opinion on:

  • the worker's residual work capacities;
  • a possible reduction of work hours or a decrease in the requested work output;
  • a possible adjustment or change of the workplace;
  • the temporary or permanent nature of the incapacity for work;
  • the periodicity of reassessments of the worker'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 Social Security Arbitration Tribunal (Conseil arbitral de la sécurité sociale) within 40 days of the notification of the decision.

Characteristics of internal redeployment

Internal redeployment consists of reintegration within the company, possibly to another position or another work arrangement suited to the worker's residual work capacity. The capacity for this new position must be ascertained by the competent occupational health practitioner.

On the recommendation of the competent occupational health practitioner, internal professional redeployment may include a reduction in working hours of no more than half the working time set in the employment contract in force before the initial decision to redeploy the worker. Nonetheless, the joint committee may, upon reasoned request by the employee or employer, decide to grant a reduction in working hours by up to 75 % of the initial working time.

Protection against dismissal

Except in the case of serious misconduct, workers benefit from special protection against dismissal from when the case is referred to the joint committee until the end of the twelfth month after the employer is notified of the decision mandating internal professional redeployment.

Thus in the event of dismissal during this period, the salaried worker has 15 days to ask the labour tribunal to nullify the dismissal and order their reintegration or retention.

After the 12-month deadline, dismissal with notice becomes possible again.

The 12-month protection does not apply in case of dismissal for serious misconduct resulting from the worker's actions, or if the fixed-term employment contract expires.

Also, the protection does not apply in the case of automatic termination of the employment contract.

Salary reduction following internal redeployment

Should the internal redeployment result in a salary reduction, workers are entitled to a compensatory benefit, which represents the difference between the previous and the new remuneration.

The former salary is calculated on the basis of the average monthly income subject to pension insurance contributions which was received by the employee during the 12 calendar months immediately preceding the redeployment decision. If the employment contract has been in effect for less than 12 months, the former salary is calculated by taking the average of the base amount subject to contributions over the completed calendar months and multiplying it by 12.

The compensatory benefit is subject to social security and tax contributions.

It ends when the right to the early retirement allowance, the disability pension, the early old-age pension and the old-age pension come into force.

Periodic medical reassessment by the occupational health practitioner

Workers on internal professional deployment may be reassessed by the competent occupational health practitioner:

  • either based on the frequency indicated on the recommendation following the referral of the case (if, during a first examination, the health practitioner found that the restrictions were temporary and set a date for a reassessment, within 2 months);
  • or at the request of the Chair of the Joint Committee.

If an employee has returned to work and a reduction of working hours or new adjustment of the workstation is needed, the occupational health practitioner refers the case to the joint committee for a decision on these adjustments.

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 worker has recovered the capacity for work needed to perform tasks similar to those corresponding to their last position before the decision to internally redeploy them, the case is referred to the joint committee, which decides to revokes the status and, if applicable, to stop paying the compensatory benefit. This decision only enters into force after a notice period of six months from the time of its notification.

Workers who fail to present themselves for the medical reassessment risk losing the status of a worker on professional redeployment and the related cash benefits by decision of the joint committee. Such a decision takes effect on the date on which it is notified.

Impossibility of internal redeployment

When internal redeployment is impossible, the joint committee mandates external redeployment and the employee is automatically registered as a jobseeker with ADEM's Department for Workers with Reduced Working Capacity. The employee is eligible for full unemployment benefits for an external redeployment.

Denial of internal redeployment

If an employer refuses to offer internal professional redeployment and this refusal is duly noted by the joint committee, employees may request that the joint committee decree external professional redeployment.

End of the fixed-term employment contract

Workers on internal professional redeployment who lose their job because of the cessation of their employer's activity or following a collective redundancy measure are entitled to refer their case to the joint committee within 20 days of the end of their employment contract in order to benefit from external professional redeployment.

In case of resignation, they lose their status as a person on professional redeployment.

End of the fixed-term employment contract

The beginning of the internal redeployment procedure does not stand in the way of the expiry of the fixed-term employment contract.

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