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 carrying out work with the aim to grant employees more flexibility for their work (e.g. working from home) while the employer is provided with certain guarantees concerning the proper execution of the work contract.
Teleworking is a particular form of work which is defined by the combination of the following 3 cumulative criteria:
- the work is performed by means of information and communication technologies, e.g. by using a computer and the internet;
- the work is carried out at a location which is different from the employer's premises, in particular work carried out from the employee's home;
- the work is performed in a regular and usual manner (which can no longer be referred to as occasional working from home).
Who is concerned
Employees working under a public-sector contract or equivalent benefit from a particular teleworking scheme.
Teleworking is a form of work which requires a prior agreement between the employer and the employee.
Moreover, the teleworking scheme is subject to a prior information and consultation session with the joint works committee (until the next social elections), or failing this, with the staff delegation.
Until these elections, the joint works committees currently in place will continue to carry out their tasks.
How to proceed
The teleworking scheme
The teleworking scheme must be chosen freely and by mutual agreement between the employer and the employee.
It can therefore be decided:
- in the employee's initial job description, i.e., the scheme was agreed upon when the employment contract was concluded with the employee;
- or in a written amendment to the employment contract which was agreed upon by both the employer and the employee.
In addition to the standard mandatory information which must appear in any employment contract, the employment contract of teleworkers must also indicate:
- the place of work where the worker must carry out his tasks;
- a precise description of the employee's functions and tasks as well as any potential goals to be met (this description should allow the employee to identify himself with his co-workers who carry out similar tasks but who are based at the employer's premises);
- the classification of the teleworker's status in the collective agreement which may be in place in the company;
- the times and the days of the week where the employee can be reached but where it must be taken into account that the working times cannot exceed the standard working times of an employee of similar status working on the employer's premises;
- the business department the teleworker is appointed to;
- the business unit the teleworker is appointed to;
- the teleworker's supervisors;
- the teleworker's contact person(s);
- a precise description of the teleworker's equipment which was installed by the employer in the place where the teleworker is carrying out his work;
- the necessary information concerning any insurances taken out by the employer to cover for the equipment installed as regards loss or damage in the event of fire, theft, etc.
Period of adjustment
Where teleworking is used by means of an amendment to an existing employment contract, the employee and the employer benefit from a period of adjustment to the teleworking scheme.
The period of adjustment is meant to:
- give the employee the opportunity to make sure that the scheme is satisfactory;
- give the employer the opportunity to ensure the scheme is appropriate for the tasks the employee has been entrusted with.
Duration of the adjustment period
The duration of the period of adjustment may vary between 3 and 12 months according to the wishes of the parties.
It is not possible to end the period of adjustment unilaterally during the first 2 weeks.
After this period of 2 weeks, either party may end the teleworking scheme provided they comply with a notice period which cannot be shorter than 15 days or longer than one month. Within this time span, the calculation base of the notice period is 4 calendar days per month of period of adjustment.
|Period of adjustment by contractual agreement||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 period of adjustment must be notified by:
- registered mail;
- or letter delivered in person to the recipient who must acknowledge receipt by countersigning a copy of the letter.
The notice period starts:
- the day after the registered letter was mailed;
- or the day after the personal delivery.
If the parties decide upon mutual agreement, after the expiry of the period of adjustment, to revert to the 'standard' scheme, the employee must be informed without delay about:
- the exact place of work when returning to work at the employer's premises;
- the work hours which must be similar to the work hours of employees in an identical or similar position in the company;
- any other work and employment conditions.
Suspending the adjustment period
Suspension in the event of illness or leave for various reasons
In the event the work contract is suspended during the period of adjustment, said period will be extended by the duration of the suspension. This extension of the period of adjustment cannot exceed one month.
a period of adjustment of 4 months has been agreed upon by contract. During the second month of the period of adjustment, the employee is on sick leave for 15 days. Upon his return to work, the employee must finish his contractual period of adjustment which will be extended by 15 days because of the period of sick leave.
On the other hand, if during a 6-month period of adjustment the employee is on sick leave for 2 months from the first day of the third month of adjustment, the employee must finish his contractual period of adjustment upon his return to work and the contractual period of adjustment will be extended by one month to compensate for the period of sick leave.
Suspension in the event of pregnancy
The period of adjustment is suspended during the employee's maternity leave.
In this case, the period of adjustment will be extended by the duration of the suspension.
Teleworkers' rights and obligations
Teleworkers benefit from the same rights and are subject to the same obligations as the other employees in the company.
However, teleworkers especially benefit from the following rights:
- right to manage their work in accordance with the provisions laid down in their employment contract or the amendment thereto;
- right to information concerning any change in the employer's situation;
- right to information on current events in the business;
- right to maintain contact with work colleagues;
- right to information distributed by the staff delegation in the company;
- right to compensation in the event of loss of specific benefits (e.g. meal vouchers);
- right to the respect of privacy: however, the employer can schedule an appointment and visit the employee at home in order to inspect the work equipment installed and, if a given situation has been foreseen by law, install monitoring equipment.
Teleworkers are namely subject to the following requirements:
- obligation to respect the company rules on data protection, namely with regard to the use of internet during work hours;
- obligation to respect the rules on health and safety at work namely with regard to computer screens;
- obligation to immediately inform the employer in the event of equipment failure or malfunction.
Teleworkers benefit from the same social security as any other employee in the company, namely in terms accident insurance.
Employers are required to:
- maintain and provide equipment for teleworking to their employees and ensure compliance of the workplace and the electrical installation.
If the teleworker should exceptionally use his own IT equipment, the employer is responsible for the adaptation and maintenance of said equipment;
- cover the costs directly linked to the work, especially costs in relation with telecommunications;
- provide their teleworkers with appropriate technical support and be responsible for any cost related to the damage or loss of equipment and data used by the teleworker;
- inform the teleworker about the restrictions in force concerning the use of their installations or IT equipment (Internet, e-mail, etc.), as well as the applicable sanctions in the event of non-compliance with those rules;
- respect the teleworkers privacy, so that in the case of a scheduled appointment at the teleworker's home, the employer is only allowed to access the room where the business equipment is installed;
- limit the use of monitoring devices:
- to safety and health requirements for the employees;
- to the protection of business equipment;
- to the monitoring of the production process carried out by machines;
- to temporary checks of the employee's performance if it is the only way to determine the employee's salary;
- to the work schedule planned in accordance with flexible work hours.
Specific case of cross-border teleworkers
Although Luxembourg law is governing the cross-border worker's employment contract, 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 complied with.
Social security scheme
Only employees carrying out a substantial part of their work (i.e. at least 25 %) in their country of residence must be affiliated to the social security in the country of residence (and, where applicable, to the Luxembourg social security for the work carried out in Luxembourg).
However if the employee carries out less than 25 % of the work in his country of residence, he must only be affiliated to the Luxembourg social security.
In terms of accidents at work, a teleworker must immediately inform his employer so that the latter can submit an accident declaration to the Luxembourg authorities or to the authorities concerned in the country of residence.
Employers who must register the employees in their country of residence are subject to the legal provisions in force in the country of residence. Therefore, both the employer and the employee are subject to social contributions in accordance with the applicable rates in the country of residence and the employer may in this case even be required to have his own social security number or to be registered with a pension fund 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.
If a worker carries out his professional activity in his country of residence and in Luxembourg, then he or she is, in principle, taxable in both countries depending on the proportion of work they carry out in each country.
The employer may in some cases be subject to the tax requirements in the employee's country of residence.
The list of tax treaties signed by Luxembourg is available on the website of the Luxembourg Inland Revenue.
Termination of the teleworking scheme
If teleworking was part of the employee's initial job description, the change from the teleworking scheme to a standard work scheme can only be made by mutual agreement between the parties by means of an amendment to the employment contract.
A teleworker who openly expresses interest in going back to a standard work scheme has priority rights to information on available positions in the company which match his qualifications or professional experience.
In the event the teleworker goes back to a standard work scheme, the employer must inform the employee about his new place of work and his work hours.