In line with the Government’s will to encourage a more equal sharing of family responsibilities between women and men, two draft laws No.8016 and No.8017 have been presented in June before the Luxembourg Parliament (Chambre des Députés) (together the “Draft Laws” and each a “Draft Law”). The Draft Laws aim at implementing into national law Directive 2019/1158 of 20 June 2019 on work-life balance for parents and carers, and repealing Directive 2010/18/UE of 8 March 2010 implementing the revised Framework Agreement on parental leave (the “Directive”).
This initiative follows the observation that work-life balance remains a considerable challenge for many parents and workers with caring responsibilities, in particular because of the increasing prevalence of extended working hours and changing work schedules, which has a negative impact, more particularly, on women’s employment. Consequently, women tend to be underrepresented in the labour market. Based on this observation, the purpose of the Draft Laws is threefold:
- Extending the right to paternity leave;
- Redesigning parental leave entitlements to encourage fathers to take parental leave;
- Introducing the possibility for parents to request flexible working arrangements to accommodate their work patterns and remain in the labour market.
The Draft Laws also provide for two new extraordinary leaves.
Extension of the scope of application of the right to paternity leave
- So far, the Luxembourg Labour Code provides for the right to an extraordinary leave of 10 days for the father in the event of birth of a child. Draft Law No.8016 intends to extend the right to paternity leave to equivalent second parents recognised as such by national law. The amendment is intended in particular to take into account the situation of same-sex couples, allowing persons who are recognized as equivalent second parents or co-parents by national legislation to benefit from paternity leave in the event of birth of a child, outside of any adoption procedure.
- Draft Law No.8016 also intends to extend the right to paternity leave to self-employed workers provided that they can prove registration with a public compulsory insurance for at least six months.
- It is also worth mentioning that the Luxembourg Labour Code currently provides that the employer must be informed of the expected dates of the paternity leave with a two-month notice. If the two-month notice period is not respected, the Luxembourg Labour Code currently provides that the paternity leave may be reduced to two days at the discretion of the employer. In this regard, Draft Law No.8016 intends to introduce the following new features:
- In order not to prejudice employees who are faced with the premature birth of a child (and who are unable to meet the two-month notice period), the Draft Law provides that the two-month notice period does not apply if the birth occurs two months before the expected date.
- In order to comply with the Directive, which provides that the right to paternity leave is an unconditional right, the Draft Law further intends to remove the possibility for the employer to reduce the paternity leave to two days in case of failure to comply with the two-month notice period. In such a case, the leave will have to be taken all at once and immediately after the birth of the child, unless the employer and the employee agree on a flexible solution, allowing the employee to take the leave in full or in part at a later date.
Adjustment of the right to parental leave
Draft Law No.8017 intends to introduce the following changes to the Luxembourg Labour Code with respect to parental leave:
- With regard to requests for a first split parental leave, the decision of the employer refusing such a request will have to be motivated in writing.
- Regarding the possibility for the employer to postpone a second full-time parental leave requested by a parent, the postponement decision will also have to be provided in writing. Before any postponement decision of the second parental leave is taken, the employer shall offer to the employee, to the extent possible, flexible ways of taking parental leave (i.e. either split parental leave or part-time parental leave).
Possibility for parents to request flexible working arrangements
- Currently, the only provision of the Luxembourg Labour Code that allows a parent to request an adjustment of his/her working hours is Article L.234-47(11). This Article only applies to employees returning to work at the end of a parental leave. These employees are entitled to request a meeting with their employer in order to request an adjustment of their working hours, for a maximum period of one year.
- The Directive goes beyond the current provisions of the Luxembourg Labour Code. The Directive indeed provides for the possibility for any employee with at least six months' continuous service who is the parent of a child under the age of nine to request a meeting with his/her employer in order to ask for the introduction of flexible working arrangements.
- Flexible working arrangements refer, for example, to teleworking, flexible working hours or a reduction in working hours. The measures may not exceed one year. The employer must provide a response to the employee within one month. Any decision to refuse or postpone the request must be motivated in writing, by registered letter.
New extraordinary leaves
The Draft Laws provide for two new extraordinary leaves:
- a one-day leave for reasons of force majeure related to urgent family reasons in case of illness or accident of a family member making the immediate presence of the employee indispensable;
- a five-day leave to provide personal care or assistance to a family member or a person living in the same household who requires considerable care or assistance for serious medical reasons.
The employer is not entitled to terminate an employee’s employment contract based on the employee requesting or benefiting from one of the two extraordinary leaves listed above, from paternity leave or from flexible working arrangements. Such dismissal will be null and void.
An employee shall also not be subject to retaliation or less favourable treatment for having benefited from or asking to benefit from the two extraordinary leaves listed above, from paternity leave or from flexible working arrangements.
The employer will have to maintain the employee’s position, or at least a similar position, during the entire duration of the two extraordinary leaves listed above, the paternity leave and the flexible working arrangements.