[co-authors: Philippe Schmit, Louisa Silcox, Elise Wojciechowski]*
WLG asked member firms around the globe to provide some insight on employer and employee rights when it comes to requiring the COVID-19 vaccine to return to work. Responses for Luxembourg. (View responses from other countries here
Can an employer require compulsory COVID-19 vaccination? If yes, are there any exceptions or special circumstances that an employer must consider?
From a Luxembourg employment law perspective, an employer is not authorized to impose a mandatory vaccination on its employees. The decision to get vaccinated falls within the scope of an employee’s physical integrity and the employee retains total discretionary decision-making power in this respect. Although employees must undergo the medical examinations provided for by law, the occupational practitioner does not have the right to inform the employer on the vaccination status of the employee.
The only situation where vaccination could become mandatory is when the government would decide to make the vaccine compulsory for certain categories, e.g., for employees who, in their daily professional environment, are confronted with the at-risk population (e.g., health care activities). This is currently not envisaged in Luxembourg.
Can employees refuse to be vaccinated? How does an employer need to balance its obligation to provide a safe work environment with an employee’s rights?
On the one hand, employers have the obligation to provide a safe working environment to their employees (although they cannot impose any form of medical treatment on their staff), while on the other, employees can refuse to be vaccinated.
If an employee refuses to get vaccinated against COVID-19, for sectors where the safety of the employees and of third parties can best be assured through vaccination (for example in the health care sector), employers may consider changing the employee's tasks in order to protect the health and safety of all involved parties. Any such change must not constitute a sanction against the employee. For sectors where home working is possible, employers may, as a precautionary measure, request their employees work from home in order to avoid any risks of contamination at the workplace.
The employer may set up testing or vaccination centers for their employees, however, the employees’ freedom to participate or not remains the fundamental principle.
In the event of a refusal, can an employee be dismissed for refusal to comply with the employer’s vaccination policy? Will the employee’s refusal constitute just cause for termination?
A sanction taken towards employees based on their refusal to get vaccinated would, in our opinion, be considered as a sanction imposed on the basis of discriminatory treatment of the employee (i.e., based on his/her health status) and would therefore likely be considered as abusive. Discrimination based on health status is also punishable by criminal sanctions under Luxembourg law. Under the current provisions of Luxembourg law, an employee cannot be dismissed based on their refusal to get vaccinated (even in the unlikely case where a mandatory vaccination is provided for by the employer’s policy).
What benefits or accommodations do employers have to make for vaccinated employees?
Under Luxembourg law, no specific benefits nor accommodations must be made for vaccinated employees.
Can vaccinated employees refuse to work in the same vicinity as employees who are not vaccinated?
It is not possible either for the employer or for the other employees to know the vaccination status of any given employee in Luxembourg. As employees cannot have access to the vaccination status of their co-workers, they do not have the necessary information to refuse to work in the same vicinity as other employees. In the event that an employee chooses to inform their co-workers of their non-vaccinated situation, co-workers will not have a general right to refuse to work in the same vicinity insofar as the general security measures are enforced (wearing of masks, social distancing, washing of hands and surfaces and so forth).
In your country, are employers required to provide paid leave for employees to get vaccinated?
There is no additional paid leave for employees to get vaccinated foreseen by the law. As for all medical visits, if an employee has a medical appointment (such as to be vaccinated), the employer should authorize such temporary absence insofar possible and the employee should make efforts to make appointments early in the morning or at moments likely to cause the least disruption to the business.
*Arendt & Medernach