1. Introduction of the Covid check scheme in companies
Since 19 October 2021, employers have the possibility to introduce the Covid check scheme within their company. It belongs to the employers to assess the “necessity” of introducing such a scheme in order to “protect the safety and health of the workers concerned”. Employers may decide to place the entire site under the Covid check scheme (access to the workplace), or limit it to certain parts of the premises or to events (meetings, conferences, etc.). Since 1 November 2021, employers in the HORECA sector (hotel, restaurant café) are obligated to implement the Covid check scheme. Moreover, since this date, the Covid Check scheme is compulsory in company canteens (it remains optional for outdoor eating areas).
2. Consequences of the introduction of the Covid Check scheme
The concerned persons (employees, collaborators, customers, suppliers, visitors, etc.) are required to present a vaccination certificate, a recovery certificate or a negative test result in order to enter a Covid check area. The QR code must be scanned each time a person enters a Covid check area. The scanning time is considered as working time. It should be noted that since 1 November 2021, only tests certified by a medical analysis laboratory that carried out the test or a health professional listed in Article 3 quater (3) of the Covid Law are valid, so self-tests are no longer accepted.
3. Involvement of staff representatives
The introduction or modification of the Covid check scheme requires the involvement of the staff delegation:
- in companies with less than 150 employees at the last elections: the staff delegation must be informed and consulted;
- in companies with at least 150 employees at the last elections: the staff delegation has a power of co-decision.
In addition, any employer, regardless of its size, must also submit the introduction of the Covid check scheme to the prior opinion of the health and safety representative (“délégué à la sécurité et santé”).
4. Notification of the Covid check scheme
Employers must notify the Covid check scheme to the Health Directorate (“Direction de la santé”) via an electronic form, except for the HORECA sector and for the canteens. The form is available online at the following address: https://covid19.public.lu/fr/covidcheck/regime/notification.html
Only one notification should be required when the scheme is introduced. The employer must also provide a visible notice. In addition, a procedure explaining clearly to employees the introduction and the modalities of the Covid check scheme would have to be established.
5. Coverage of Covid Check test costs
The costs of the tests shall be borne by the employees, who may indeed be vaccinated free of charge in order to avoid the need to be tested.
6. Processing of personal data
The use of the Covid Check application, is not to be considered as processing personal data under the following conditions: employers must simply scan the QR codes without leaving any trace on any medium, material or file, and they must therefore avoid any recording of this medical data on any medium. Otherwise, there could be illegal processing of personal data. Furthermore, the National Commission for Data Protection (CNPD) published on 29 October 2021 a FAQ on data protection and Covid-check (https://cnpd.public.lu/fr/dossiers-thematiques/covid-19/covid-check.html). The CNPD provides clarifications concerning, on the one hand, the use of the application CovidCheck.lu, and on the other hand, the implementation by the employer of the Covid check scheme at the workplace.
7. Sanction for refusal of the employee to comply with the Covid check
The provisions of the Labour Code entirely apply. Therefore, the employer could decide to sanction the employee who refuses to comply with the Covid check scheme. The employee will also be considered to be in unjustified absence if telework is no longer allowed or possible (unless a request for statutory leave is accepted). As in every case, the employer will have to analyse the situation on a case-by-case basis and take the appropriate and proportionate measures according to the situation of the company, the type of activity and the employee concerned.
If it is not possible to adapt the job (e.g. in an area not covered by the Covid check scheme), it would be appropriate to first send to the uncooperative employee a written warning reminding him/her of the Covid check rules and its health and safety benefits. If the behaviour persists and the employee refuses to work, the employer could consider notifying a dismissal, even for gross misconduct. This is all the more valid in the HORECA sector since 1st November 2021 in view of their obligation of the Covid check scheme.
Key Action Points for Human Resources and In-house Counsel
- Analyse the situation in practice (interest in setting up the scheme, financial impact if the employer wants to bear the tests costs);
- Define the scope of the scheme (entire site or limit it to certain parts of the premises or to events such as meetings, conferences, etc.);
- Draft a Covid check procedure;
- Inform and consult the staff delegation (in companies with less than 150 employees at the last elections) or involve the staff delegation (co-decision in companies with at least 150 employees at the last elections), and inform the health and safety representative;
- Notify the introduction of the scheme to the Health Directorate via the electronic form.