Lawyer Guy Castegnaro discussed the legal aspect of this new way of working in a report on RTL Télé Lëtzebuerg.
A petition recently called for the establishment of a "right to telework", citing health concerns for teams and the fact that some people simply prefer working from home among their reasons. The existence of this petition implies that such a right does not currently exist. Castegnaro confirmed this and explained that, as of right now, an employer was still able to turn down a request for telework by one of their employees and would not have to give a reason why. It were up to employers to decide whether or not telework was a viable alternative. Castegnaro added that, even in the future, telework would continue to be based on an agreement between the employer and their employees.
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While the recently signed convention between the social partners might be generally binding, the employer still has no obligation to grant a request for telework. However, he will instead have the obligation to guarantee a safe work environment. In any case, the government's sanitary measures also apply at work, and it is the employer's responsibility to ensure that they are respected.
On the other hand, employees are obligated to go to work, provided the workspace complies with Covid-19 regulations. Employees can only refuse to go work if the work environment represents a severe danger to their health.
The number of new daily infections is high, and the National Health Directorate is struggling to cope with contact tracing, which can potentially result in delays in the issuing of official certificates for people who were in close contact with an infected person. This in turn can then stir up conflict between affected employees and their employer.
Castegnaro stated that this certificate was equivalent to a certificate of incapacity for work. If it is delayed, the employee would naturally not be able to submit it to their employer. He continued to explain that for the latter, i.e. from a legal perspective, they would find themselves in "grey zone" for two to three days. But since a certain level of trust should be involved in any employer-employee relationship, employers could be expected to simply give their employees the benefit of the doubt, which were also the case 99.99% of the time.
In the case of someone coming out of quarantine but otherwise feeling healthy, Castegnaro explained that it was up to them whether they submitted the certificate – which exempts them from having to do any work – or tried to organise a form of telework in accordance with their employer. Castegnaro also added that the regulation stipulating that the National Health Fund would pay an employee's salary from the first day of the certificate of incapacity for work, was no longer in place.
The report (in Luxembourgish):
