SICK LEAVE AND WORK INCAPACITY DUE TO ILLNESS IN LUXEMBOURG

An employee who is ill and unable to go to work cannot perform their duties and their absence may be detrimental to the organization of the company’s work. The employee must follow various procedures in order to justify their absence and protect themselves.

The employee's obligations towards the employer

The employee must first inform their employer (or department head) on the first day of their absence, either orally or in writing. They must then provide their employer with a medical certificate attesting to their incapacity no later than the third day of their absence.

In the event that the work incapacity does not last more than 2 days, the employee may be exempted from submitting a medical certificate (if company practice allows it). However, the employer may ask the employee for proof and the employee must, if applicable, be able to produce it.

The employer may not dismiss the sick employee if the employee has complied with the aforementioned procedures. Otherwise (e.g. if the employee has not submitted a medical certificate or has not notified their employer), the employer is in an exceptional situation. Indeed, these omissions constitute serious misconduct and justify an immediate dismissal.

The rights of the employer

The employer may take isolated measures in specific situations.

• If doubt exists as to the reality of the illness, the employer may choose a doctor and ask the employee to undergo a new medical examination. The employee may not refuse to submit to a new examination without good cause. Doing so without such good cause constitutes serious misconduct and may justify dismissal.
• The employer may decide to terminate the employment contract if the employee's work is disrupted by repeated absences due to illness and, disrupting the regularity of the work. This may justify a dismissal with notice on the ground of disrupting the organisation of the company's work.
• Like the Caisse Nationale de Santé (National Health Fund), the employer may request an administrative inspection of an employee who is unable to work (i.e. a visit to the employee's home) to ensure that the employee is present in their home. To do so, the employer may apply for an administrative review on the CNS website, by e-mail, fax or post. The employer will then be notified of the processing of the application and will be given a report of the administrative inspection if the employee is absent at the time of the visit and does not give a reason for their absence within 3 working days from the date of the inspection.

It should also be noted sick days which occur during days off are not considered as part of the latter. These days of leave can be carried over.