Incapacity for work and medical certificates

This page was last modified on 29-10-2013

An employee on sick leave (due to sickness or accident) must:

  • inform his employer as from the first day of absence and;
  • provide a medical certificate at the latest on the third day of absence.

Example: a salaried worker on a part-time contract who does not work on Mondays but who is away from work due to illness as from the Monday must inform his employer of his condition as of Tuesday (first day of absence from work) and hand in his medical certificate by Thursday midnight at the latest (third day of absence).

He is thereby protected against dismissal.

However, the employer may, in certain cases, request that his employee undergoes:

  • either an administrative check;
  • or a medical check.

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Who is concerned

An employee must inform his employer of his incapacity for work due to illness or accident, either verbally or in writing (e-mail, fax or text message) on the first day of absence.

He may do so directly or via a third party.

However, simply telling a work colleague is not sufficient as this information may not be relayed to his employer.

The employee has to provide a medical certificate at the latest on the third day of absence.

How to proceed

Employee obligations

Employees must always inform their employer from the first day of absence.

During sick leave, the employee still has an obligation of loyalty to his employer and he can not carry out any other professional or similar activity during his period of incapacity for work.

Sick leave of 1 or 2 days

If sick leave lasts only 1 or 2 days, the employee may, depending on business practice, be exempt from having to provide a medical certificate for these days.

Nevertheless, the employer is entitled to require that the employee must justify his absence of 1 or 2 days. A (salaried) worker must always be able to justify his absences from work, whatever their duration.

Sick leave of 3 days or more

Before the end of the third day of incapacity for work, the employee (regardless of whether he is a resident or cross-border worker) must ensure that his employer has received the medical certificate.

The employee must send:

  • the first sheet of the medical certificate, duly completed and signed by his doctor, to the National Health Fund (Caisse Nationale de Santé - CNS);
  • the second sheet to his employer.

He must keep the third sheet of the certificate for reference purposes.

From a social security point of view, the medical certificate must be established on the third day of medical leave or of its extension at the the latest. Each medical certificate which has a retroactive validity exceeding 2 days will only be taken into consideration by the CNS as from its date of establishment.

Urgent hospitalisation

In the event of urgent hospitalisation, the employee has 8 days from the date of his hospitalisation to send a medical certificate to his employer.

If during this period a dismissal procedure was initiated against the worker, the procedure is deemed to be null and void provided the worker submitted the medical certificate (certificate of incapacity for work) to the employer within 8 days of hospitalisation.

Extension of the period of incapacity for work

If the period of incapacity for work is extended beyond the period initially set, the employee must:

  • inform his employer on the first day on which he was initially expected to return to work;
  • send the new medical certificate:
    • to the CNS before the end of the second day after the day where he was initially expected to return to work;
      If the last day of this deadline falls on a Saturday, Sunday or public holiday, the deadline is extended to the next working day.
    • to the employer who must be in possession of the extended medical certificate before the end of the third day of extended medical leave.

When an employee returns to work following a continuous absence of more than 6 weeks due to illness or accident, the employer must inform the competent occupational health practitioner responsible for his business. The occupational health practitioner will decide whether the employee must undergo a medical check. He will then determine whether the employee is able to return to his workstation or if another position may be more appropriate or if he should be redeployed.

Incapacity for work during annual holidays

If the resident or cross-border worker is on sick leave during his holidays and if he is in Luxembourg, he must send his employer a medical certificate within 3 working days.

If the resident or cross-border worker is in a foreign country, he must inform his employer as soon as possible.

If the employee is on sick leave during his holidays, the days covered by the medical certificate are not deemed to be holidays. These holidays may therefore be taken at a later date.

Permission to go out during an incapacity for work period

During the period of incapacity for work, the worker is not allowed to go outside during the first 5 days of sick leave (except to have a meal, under certain conditions) even if the medical practitioner has stated otherwise on the medical certificate.

From the sixth day of sick leave (only if not advised against by the medical practitioner), the worker is allowed to go outside between 10.00 and 12.00 and between 14.00 and 18.00 (even if this is not indicated on the medical certificate of incapacity for work).

A person on sick leave may not:

  • join in sports activities (unless medically indicated);
  • carry out any activity which is not compatible with his state of health;
  • go to a drinking or eating establishment, except to have a meal (as from the first day of incapacity for work) and provided the person has previously informed the National Health Fund (CNS) by phone, fax or email.

The person on sick leave must provide the relevant health fund with the exact address (country, city, road, number, floor, etc.) where he will be staying during the period of incapacity for work. If said address is different from the home address, it must be indicated on the medical certificate of incapacity for work, or failing this, be communicated to the CNS via phone, fax or email.

Essential visits for a medical check at the social security (Contrôle médical de la sécurité sociale - CMSS) or to the medical practitioner or any other health practitioner are allowed at any time but must be documented by the worker on sick leave.

Protection against dismissal

Absences due to incapacity for work can not be:

  • considered to be an unjustified absence;
  • nor be deducted from the employee's annual holiday allowance.

If an employee has fulfilled his obligations in terms of information (informing his employer on the first day and providing a medical certificate on the third day at the latest), he is protected against dismissal during a maximum period of 26 weeks from the date of the beginning of his sick leave.

During this 26-week period, the employer may neither dismiss the employee with notice nor call him to a preliminary interview in view of dismissal with notice nor dismiss him for serious misconduct which took place prior to the sick leave.

However, an employee is not protected against dismissal:

  • if he is absent because of an incapacity for work due to a crime or misdemeanour in which he participated voluntarily (e.g.: incapacity for work due to a traffic accident caused by the employee while driving under influence and without a valid driving licence);
  • if the letter of dismissal was received by the employee before the employer was informed of the employee's sick leave;
  • or if for no valid reason, the employee has repeatedly missed additional medical examination appointments organised by his employer;
  • or, depending on the case, if the employee has not fulfilled his obligations in terms of information.

Employers may terminate the employment contract after a period of 26 weeks of incapacity for work.

Informing the employer on the first day of absence due to sick leave and providing the employer with the medical certificate within 3 days of absence are two concurrent essential conditions entitling an employee to receive protection against dismissal.

If one of the conditions is not fulfilled, an employee is not protected against dismissal during his sick leave. However, these conditions do not affect the employee's salary.

Therefore, if an employee submits a medical certificate to his employer, even after the 3-day deadline, he has the right to receive his salary for the period indicated on the medical certificate if the sick leave occurs during the continuation of pay period ('Lohnfortzahlung').

Administrative check on employees

Administrative checks on employees who are absent from work due to sickness or accident may be initiated by the 'fight against abuse and fraud' department (service 'lutte et abus de fraude') of the National Health Fund (Caisse Nationale de Santé - CNS) as well as upon justified request from the employer.

A check may be carried out during the period of continuation of pay by the employer or during the period when the CNS takes charge of the financial indemnity.

To request an administrative check, the employer has to:

Following his request, the employer receives written confirmation from the department responsible for checking on employees on sick leave (by fax or e-mail), as well as the registration number of his request.

If the employee returns to work before the term of his sick leave expires, the employer must immediately inform the CNS.

The administrative check carried out be the CNS is a control measure to verify whether the worker on sick leave is at home. The control can take place between 8.00 and 21.00. These controls can concern both resident and non-resident workers and may be carried out as from the first day of incapacity for work. As regards cross-border workers in France, the CNS may appoint a medical practitioner working in France to carry out the checks at the worker's place of residence.

The administrative check produces a statement of presence or an infraction in the event of absence of the worker. The inspector noting the worker's absence from home during an administrative check will leave an administrative control notice for the worker. The worker on sick leave must then provide an explanatory note explaining the reasons of his absence within 3 days of the administrative check.

After this deadline, if the employee has not provided a valid reason for his absence, the employer will be informed of the result of the visit by the controller.

If the employer wishes to make a new request for the same employee on sick leave, he may do so at the earliest 30 days after the last request.

Additional medical examination

A medical certificate does not constitute irrefutable proof of the employee's incapacity for work.

The employer may have doubts with regard to whether the employee is actually ill or may suspect that the certificate was only issued as a friendly service to the patient.

He may therefore request that the employee must attend an additional medical examination at a doctor's practice of his choice.

If the employee consistently refuses the additional medical examination without giving reasons, he is no longer protected against dismissal.

The examining health practitioner at the social security may also summon an employee for an additional medical examination in order to protect the financial interests of the National Health Fund (Caisse Nationale de Santé - CNS) against any abuse.

In the case of contradictory opinions of the original doctor and the doctor carrying out the additional medical examination, it is recommended that the services of a third doctor be requested in order to reach a decision.

In fact, an additional medical examination alone is not sufficient to prove the fictitious nature of the incapacity for work.

The employer must provide other elements of proof (for example, a second additional medical examination where it was noted that the employee is fit for work and, depending on the case, the employee's evenings out or activities that are in contradiction with the invoked state of health).

Who to contact

125, route d'Esch
L-1471 - Luxembourg
Luxembourg
Phone: (+352) 27 57-1
Email cns@secu.lu