SITUATION: CORONAVIRUS / COVID-19
In the context of the coronavirus pandemic, the Government has put in place a number of exceptional measures regarding the telework of cross-border workers.
For more information please consult our news on the subject.
Teleworking is a way of organising and/or doing work to afford employees more flexibility in the organisation of their work while at the same time providing the employer with certain guarantees in terms of compliance with the employment contract.
Teleworking is a particular form of work organisation characterised by the simultaneous occurrence of the following 3 criteria:
- the performance of work using information and communication technologies, e.g. a computer and the Internet;
- the performance of work at a location other than the employer's premises, and especially at the employee's home;
- the performance of work in this way on a regular and on-going basis (thereby excluding work performed at home on an occasional basis).
Who is concerned
Employees working in the public sector or equivalent are covered by a special teleworking scheme.
The adoption of a telework arrangement requires the prior agreement of both the employer and the employee.
Moreover, if an employer wishes to implement a telework arrangement, they must first inform and consult with the joint works committee, or failing this, the staff delegation.
How to proceed
The option of a telework arrangement
Implementing a teleworking arrangement is subject to specific conditions governing its adoption and its practical application.
The telework arrangement must be chosen voluntarily and by mutual agreement between the employer and employee.
It can therefore be provided for:
- in the employee's initial job description, i.e., agreed upon before the employee signed the employment contract, or
- in a written rider to the employment contract, to be agreed upon by both the employer and employee.
Mandatory information in the document serving as the basis for telework
In addition to the mandatory information which must appear in any employment contract, the contract binding a teleworker to their employer must also specify:
- the place where the employee is to perform their work;
- a precise description of the employee's duties, as well as the tasks to be accomplished and any objectives to be achieved (the aim of this description is to allow the teleworker to be able to situate themselves with respect to the employer's employees who work on the company's premises);
- the classification of the teleworker's status in any collective agreement that is applicable at the company;
- the times of the day and days of the week when the employer must be able to reach the employee, without those times exceeding the normal work hours of an employee with equivalent status working at the company's premises;
- the company department to which the teleworker belongs;
- the company business unit to which the teleworker is attached;
- the teleworker's supervisor(s);
- the teleworker's contact person(s);
- a precise description of the teleworker's equipment, provided and installed by the employer in the place where the teleworker is to perform their work;
- details regarding the insurance taken out by the employer to cover the loss or damage for the provided equipment in the event of fire, theft, etc.
When a teleworking arrangement is set up by means of a rider to an existing employment contract, the employee and the employer are entitled to a period of adjustment to the new arrangement.
The adjustment period is meant to:
- give the employee the opportunity to make sure that the arrangement is satisfactory;
- give the employer the opportunity to ensure the arrangement is appropriate for the tasks entrusted to the employee.
Duration of the adjustment period
The adjustment period may vary between 3 and 12 months, according to the wishes of the parties.
The adjustment period may not be terminated unilaterally during the first 2 weeks.
After this 2-week period, either party may end the teleworking arrangement, provided they comply with a notice period, which cannot be shorter than 15 days or longer than one month. Within this time span, the basis for calculating the notice period is 4 calendar days per month of adjustment period.
|Adjustment period provided for in the employment contract||Duration of the notice period|
|3 months||15 days|
|4 months||16 days|
|5 months||20 days|
|6 months||24 days|
|7 months||28 days|
|8 months||1 month|
|9 months||1 month|
|10 months||1 month|
|11 months||1 month|
|12 months||1 month|
The end of the adjustment period must be notified:
- by registered post or;
- by a letter delivered by hand to the recipient, who must acknowledge receipt by countersigning a copy of the letter.
The notice period will begin:
- on the day after the registered letter was posted, or;
- on the day after the letter was delivered by hand.
If the parties decide by mutual agreement, after the expiry of the adjustment period, to revert to the 'standard' arrangement, the employee must be immediately informed of:
- their precise place of work when they return to working at the employer's premises;
- their working hours, which must be similar to the working hours of other employees in an identical or similar position in the company;
- any other work or employment conditions.
Suspending the adjustment period
Suspension in the event of illness or other kinds of leave
If the employment contract is suspended during the adjustment period, the adjustment period will be extended by the duration of the suspension, but the extension may not exceed 1 month.
However, if a 6-month adjustment period is provided for in the contract, and on the first day of the third month the employee goes on sick leave for 2 months, upon their return, they must complete the remainder of the adjustment period provided for in the contract, which will be extended by one month to compensate for the period of sick leave.
The adjustment period is also suspended if an employee takes maternity leave.
In this case, the adjustment period will be extended by the duration of the maternity leave.
Teleworkers' rights and obligations
Teleworkers enjoy the same rights and are subject to the same obligations as the other employees of the company.
However, teleworkers enjoy more specifically the following rights:
- the right to organise their work in accordance with the provisions contained in their employment contract or a rider thereto;
- the right to information concerning any change in the employer's situation;
- the right to information on current events in the business;
- the right to maintain contact with work colleagues;
- the right to information circulated by the staff delegation within the company;
- the right to compensation in the event of loss of specific benefits (e.g. meal vouchers);
- the right to privacy: however, the employer may arrange an appointment to visit the employee to inspect any equipment made available to the latter and, in cases provided for by law, install monitoring equipment.
Teleworkers are subject to the following obligation in particular:
- the obligation to observe the company rules on data protection, and especially those concerning the use of the Internet use during work hours;
- the obligation to observe occupational health and safety measures, and especially those concerning the use of computer screens;
- the obligation to immediately inform the employer in the event of equipment failure or malfunction.
Teleworkers enjoy the same social-security coverage as any other employee in the company, especially with regard to accident insurance.
The employer must:
- provide the employee with and maintain any equipment required for teleworking, and ensure compliance of the workplace and the electrical installations; if, exceptionally, the teleworker uses their own equipment, the employer is responsible for the adaptation and maintenance of said equipment;
- cover any costs arising directly from this work, especially those related to communications;
- provide their teleworkers with appropriate technical support, and bear any cost arising from the damage or loss of equipment and data used by the teleworker;
- inform the teleworker of any restrictions in force concerning the use IT equipment and tools (Internet, e-mail, etc.), and of the applicable sanctions in the event of non-observance of those rules;
- respect the employee's privacy such that, if a visit is scheduled, access is limited to the room where the business equipment located. Surveillance equipment must be limited to the cases and conditions strictly provided for by law.
Termination of a telework arrangement
If teleworking was part of the employee's initial job description, the telework arrangement can only be changed to a standard work arrangement by mutual agreement between the parties and by means of a rider to the employment contract.
A teleworker who openly expresses interest in going back to a standard work arrangement is entitled to be treated with priority with regard to information on available positions in the company which match their qualifications or professional experience.
If the teleworker goes back to a standard work arrangement, the employer must inform the employee of their new place of work and working hours.
Specific case of cross-border teleworkers
The telework arrangement has specific repercussions for cross-border workers, in particular as concerns the law that applies to the employment contract, and the applicable social security scheme.
Luxembourg law will continue to govern a cross-border worker's employment contract, although the mandatory provisions (such as minimum wage, legal working hours, duration of paid annual leave, etc.) in force in the country of residence must also be respected.
Social security scheme
An employee who performs a substantial part of their work (i.e. at least 25 %) in their country of residence must be registered with the social security system in that country (and, where applicable, with the Luxembourg social security system for the work carried out in Luxembourg).
However, if the employee performs less than 25 % of their work in their country of residence, they must only be registered with Luxembourg social security.
Therefore, depending on the case, the teleworker will be registered with the Luxembourg social security institutions or the social security institutions of the country of residence. The teleworker will be protected for illness, pension, disability or work-related accident.
With regard to work-related accidents more specifically, a teleworker must immediately inform their employer so that the latter can submit an accident declaration to the competent Luxembourg authorities or to the concerned authorities in the country of residence.
Bilateral tax treaties are designed to avoid double taxation.
Under these double taxation avoidance agreements, salaried and self-employed workers are generally taxed in the country where they carry out their profession.
Salaried workers who carry out their profession in their country of residence and also in Luxembourg are in principle taxed in both countries, on the proportion of work carried out in each country respectively.
The list of tax treaties signed by Luxembourg is available on the website of the Luxembourg Inland Revenue.