During the state of emergency declared by the grand-ducal regulation of 18 March 2020, the period of protection against termination due to illness for 26 weeks under article L. 121-6, paragraph 3, of the Labor Code, was temporarily suspended.
Article 2 of the law of 20 June 2020, known as COVID law, aiming to fix the modalities “post state of emergency”, indicates in its first paragraph that: “This period (of 26 weeks) resumes its course the day after the end of the state of emergency if the employee is still unable to work ”, i.e. from 25 June 2020 onwards.
However, the legislator also immediately limits the scope of this provision by indicating in paragraph 2: “From the first day of the twenty-seventh week of protection against dismissal, the employer duly notified in accordance with paragraph 1 of article L. 121-6 of the Labour Code or in possession of the medical certificate referred to in paragraph 2 of the same article is authorized, only for gross misconduct, to notify the employee the termination of his employment contract, or, if necessary, the summons to the prior interview referred to in article L. 124-2 of the Labour Code”.
As a consequence, an employee whose illness began before the state of emergency or between 18 March and 24 June 2020 is protected against termination (except for gross misconduct) as long as he delivers, during the post-emergency period, medical certificates on time to the employer.
It is important to highlight that Labour courts must apply the most favorable interpretation of any legal provision for the benefit of the employees. A direct consequence of this is that any employee falling under this exception is in fact protected without limitation against any termination with notice.
The only limit is the 78 weeks rule laid down in article L.125-4 2) of the Labour Code providing for the automatic termination of the employment contract after expiry of the employee’s rights to statutory sick pay.
However, the employer must continue to be vigilant because the computation of the 78 weeks had also been suspended during the state of emergency. Therefore, periods of illness between 18 March and 24 June 2020 are not taken into account.
The employer is therefore confronted with the following situations depending on the starting date of the sickness period:
- 1. The employee’s sick leave began before the state of emergency or between 18 March and 24 June 2020; hence, the employee benefits from a protection against termination for a maximum duration of 78 weeks.
- 2. The employee’s sick leave began on 25 June 2020 or later hence, the employee benefits from a 26 weeks’ protection against termination.
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