The law of December 15, 2017 aims to increase certain holidays and reduce, respectively remove others, this from January 1, 2018.
The new law increases from 2 to 10 the number of days of leave granted to the father in the event of the birth of a child.
As with paid legal leave, paternity leave is set in principle according to the wishes of the employee, subject however to business requirements and to the following conditions:
- The 10 days can be split but must be taken within 2 months after the birth of the child. Moreover, in the absence of agreement between the employee and the employer, the 10 days must be taken at one time and immediately after the birth.
- The employer must be informed with 2 months’ notice of the foreseeable dates on which the employee intends to take the leave. This request must be accompanied by a copy of the medical certificate indicating the presumed date of birth. These elements are intended to allow the employer to better plan the replacement of the employee concerned. If the employee fails to comply with this notification requirement within the 2-month period, the leave may be reduced to 2 days by decision of the employer.
For employees who intend to take paternity leave in the event of the birth of a child during the first 2 months after the entry into force of the new law on 1st January 2018, it is not possible to respect the notice given by the new provisions since the event is necessarily happening before the deadline of 2 months. It can be read in the comments to the draft bill that, except with the employer’s agreement, these employees can only claim a right to the two days of leave provided for by the current legislation. The employer can therefore decide for these employees to reduce the leave to 2 days.
The first 10-day leaves that must be granted are those starting no earlier than March 1, 2018.
Even if, from a textual point of view, the leave is reserved for the “father”, it can be read in the comments to the draft bill that the intention is to make same-sex couples benefit equally from the increase in paternity leave.
In addition, the same 10-day leave is provided for the adoption of a child under the age of 16, except in case of benefit of the so-called “congé d’accueil” of a duration 12 weeks.
Paternity leave is to be paid as normal leave but, from the third day on, is funded by State budget.
Hence, the employer can be reimbursed the wages advanced for the last 8 days of paternity leave that the new law adds to the 2 days provided by current legislation. The request for reimbursement is sent by the employer, with supporting documents and subject to foreclosure, within 5 months from the date of birth, to the minister of Labour, Employment, Social Economy and Solidarity.
As with maternity leave, the salary that is considered for reimbursement is however limited to 5
times the minimum social wage for unskilled employees.
Leave in case of death of a minor child is increased to 5 days.
If a collective labour agreement already expressly provides for such leave, only the most favourable provision applies to employees falling within the scope of application.
The new legislation does not change the duration of 2 days but specifies that this leave is only due once every 3 years, unless the move takes place for professional reasons.
However, this right is created individually with each employer without considering any use of these days of leave with a previous employer.
Regarding the leave granted in case of marriage or PACS, the law introduces a certain number of reductions for the persons concerned as well as the parents of these, namely
- Marriage: 3 days
- Pacs: 1 day
- Marriage of a child: 1 day
- Pacs of a child: 0 days
The law of December 15, 2017 introduces a general extension of this leave to 12 weeks. This duration is therefore no longer subject to any additional special conditions such as breastfeeding or premature or multiple birth.
All other provisions concerning the protection at work granted to women who have given birth or are nursing, continue to apply. Hence, “if birth takes place before the presumed date, the part of the prenatal leave that is not taken is added to the postnatal leave as defined in Article L.332-2. If the birth takes place after the presumed date, the prohibition to occupy the pregnant woman is prolonged until the date of birth without a reduction of the duration of postnatal leave.”
The so-called “congé d’accueil” in case of adoption of a child under the age of 12 is also extended to 12 weeks.
The text replaces the 2 days per year that parents are currently entitled to if the state of health of the child requires their presence, by a number of days depending on the age of the child. The total that can be granted per minor child is thus increased from the current 30 days to 35 days distributed as follows:
- 12 days for children aged 0 to under 4 years
- 18 days for children between 4 and under 13 years old
- 5 days for children between 13 and under 18 years old; but only in case of hospitalization.
Leave days are no longer lost if not used in each calendar year but only if not used within the respective age group, each of which covers several years. Thus, the predefined quota per specified age group may be used at any time within the period in question. However, both parents cannot take such leave at the same time.
The transitional provisions stipulate that the National Health Fund (CNS) and the Social Security Authority (CCSS) will deduct the days off for family reasons already taken at the time of the coming into force of the law on January 1, 2018, from the maximum number of days that can be granted in the given age group.
It remains to be determined by what means the employer will be informed of the quota of leaves available to the employee, respectively already granted for the same child during the age group, if any, by a previous employer. Good collaboration between the institutions and the employers will be essential for proper management of the quotas without the risk of potentially unfair claims by employees, particularly in the event of a change of job or a simultaneous request from both parents.
In the future, as is the case today, longer periods of leave for family reasons are provided for children with disabilities or those suffering from an exceptionally serious illness or disability.
Leave granted for compulsory military service is finally repealed.
Many collective agreements include a list of the holidays provided for by current legislation, rather than simply referring to the legal texts. Given that the current legislation grants for a certain number of events more holidays than the new one, and to avoid potential future claims based on more favourable contractual provisions, we suggest you take advantage of a possible renegotiation of your collective agreement to adapt the respective provisions.
This communication is intended to summarize the main points of the new provisions, pending further information on the management of the various holidays, notably by the Ministry of Labour, the CNS and the CCSS.
We hope to be able to provide you with more information in the context of a conference on 18 January 2018 at 4 pm for which we ask you to reserve the date. The conference will be held in French. An invitation to register will be available shortly.
The full text of the law of December 15, 2017 can be consulted in the Memorial A No. 1082 on December 18, 2017 under this link.
Luxembourg, 21 December 2017