Adoption leave

This page was last modified on 04-01-2018

Adoption leave is granted to the parents who adopts one or more children who have not yet reached the age of 12. Adoption leave will enable one of the parents to stay at home in order to take care of the child(ren) who has/have recently arrived in the family.

Who is concerned

Each salaried or self-employed worker who adopts one or more children (who must be less than 12 years old) is entitled to adoption leave. However, this type of leave can only be granted to one of the parents.

If both parents meet the requirements for adoption leave, they will have to decide which one shall take the leave.

If only one of the parents meets the requirements, then only this parent will be entitled to the leave.

The person who does not benefit from adoption leave is entitled to 10 days of leave for personal reasons (or more, depending on the statute/collective agreement in force in the company).

However, at the end of the adoption leave both parents may take parental leave.

Prerequisites

In order to be granted adoption leave and receive a financial allowance, the employee or self-employed worker must have been:

  • registered with the mandatory sickness and maternity insurance;
  • for at least 6 months during the 12 months prior to the adoption leave.

How to proceed

Application for adoption leave

A salaried worker who wishes to take adoption leave must:

  • submit an application to his employer by presenting either the adoption order issued by the court proving that the adoption procedure has been started (requête en adoption) or the approval from the Ministry of Education, Children and Youth to proceed with the procedure.
  • submit the adoption application procedure or the approval to proceed with the procedure to the National Health Fund (CNS) together with his/her contact details and the start date of the adoption leave agreed on with the employer.

The employer cannot turn down the employee's request for adoption leave.

In the case of adoption by a single-parent family, the employer returns the original copy of the tax card to the employee, so that he/she can send it back to the competent tax office in order to change the tax class, along with the adoption order issued by court.

Self-employed persons who wish to take adoption leave must:

  • submit the adoption application procedure or the approval to proceed with the procedure to the National Health Fund (CNS) together with their contact details and the start date of the adoption leave.

The CNS will then send them the form "attestation sur l'honneur" (declaration on honour) which must be completed, signed and returned to the CNS. With this form, applicants declare that they will interrupt their professional activity during the full period of the adoption leave and also communicate the date when they will resume their activity.

Amount and duration of benefits

Amount of adoption leave

Adoption leave is granted for 12 weeks from the start date communicated to the CNS.

Amount of benefits

During adoption leave, the employee or self-employed worker is entitled to an allowance paid by the CNS. The amount of the adoption allowance is determined in the same way as the sickness allowance.

The amount of the allowance is:

  • for the salaried worker:
    • equivalent to the highest base salary received during the 3 months prior to the adoption;
    • including, where applicable, the average of complementary and accessory benefits received during the 12 months preceding the month prior to the start of the adoption leave;
  • for the self-employed worker: the contribution base in force at the time adoption leave is taken.

The financial allowance cannot be:

  • lower than the social minimum wage;
  • 5 times higher than the social minimum wage.

Financial maternity benefits cannot be cumulated with sickness benefits nor any other professional income.

Effects of the adoption leave on the working relationship

Trial period

If an employee under a permanent employment contract wishes to benefit from adoption leave while he/she is still on a trial period, the trial period is suspended from the day the employee submits the adoption order to the employer.

The employee on adoption leave is in effect protected against dismissal throughout the period of leave as well as, if applicable, during the full-time parental leave.

The remaining trial period resumes at the end of the period of protection against dismissal.

In the case of a fixed-term employment contract, there is no suspension of the trial period nor renewal of the fixed-term contract, which expires normally at the end of the term initially foreseen.

Protection against dismissal

The employer cannot dismiss the employee with notice nor call for a pre-dismissal interview during the total duration of the adoption leave from the moment the employee submits the adoption order to the employer.

The ban on dismissal is valid for a period of 12 weeks following the adoption.

If the employee is dismissed after all, he/she has 15 days following the dismissal to file a claim with the labour tribunal and to request that the dismissal is declared null and void.

In the event of cessation of business, the termination of employment is not declared null and void.

However, a salaried worker on adoption leave can be dismissed for serious misconduct. Employers can pronounce the employee's immediate suspension pending the decision of labour tribunal, but they cannot send the actual letter of dismissal of their own initiative.

Employer must file a request with the labour tribunal in order to be authorised to terminate the employment contract. The tribunal analyses the gravity of the misconduct and decides whether to validate the immediate suspension and thus terminate the employee's employment contract. In the event of an irregular dismissal without a suspension that must have occurred under the conditions stated before, the president of the tribunal will order the reinstatement of the salaried worker in the business.

Salaried workers can also initiate legal proceedings for unfair dismissal.

Remuneration and registration

During adoption leave, the employer must not deregister the employee from the Joint Social Security Centre (Centre commun de la sécurité sociale - CCSS).

But the employer has to:

  • suspend salary payments throughout the duration of the leave. The salary slips and the salary declarations to the CCSS should therefore show a salary of zero (EUR 0). Benefits in kind (company car, lunch vouchers, etc.) can also be suspended during the adoption leave;
  • declare the absence of the employee to the CCSS in the monthly sick leave declarations.

The National Health Fund (CNS) receives the information required to pay out the adoption allowance from the Joint Social Security Centre (CCSS).

Annual leave and acquired advantages

Adoption leave is considered as an effective period of work. The employer must, therefore:

  • take the adoption leave into account when calculating the days of annual leave. The leave not taken by the employee prior to the beginning of the adoption leave is deferred within the legal deadlines;
  • take into account the period of adoption leave when calculating seniority and related rights;
  • keep the employee's position open, or an equivalent position, while the person is on adoption leave (the equivalent position must match the person's qualifications and provide a salary at least equivalent to the employee's current salary);
  • keep the acquired benefits earned by the worker prior to adoption leave;
  • allow the worker to benefit from any improvements in the working conditions introduced during the adoption leave.

Parental leave

At the end of the adoption leave, both parents are entitled to a part-time or full-time parental leave.

In the case of a full-time parental leave, the employment contract is fully suspended and the employer must deregister the employee from social security. Therefore, he must not declare salary payments during this period.

Resignation of the employee

Employees who do not wish to return to work at the end of the adoption leave, in order to take care of their child, can resign without notice and without having to make a severance payment.

Moreover, they can assert their right to priority for re-employment for a period of one year. Following this request and for the duration of one year, employers have to give priority to the former employee if he/she applies for a position in line with his/her qualifications, and in the event of re-employment, grant the employee all the benefits he/she was entitled to prior to their resignation.

Resignation without notice is established only in favour of employees who decide to give up their job in order to devote themselves fully and exclusively to the education of their child.

This does not apply to employees who wish to change employer at the end of their adoption leave.

Who to contact

125, route d'Esch
L-1471 - Luxembourg
Luxembourg
Phone: (+352) 27 57-1
Email cns@secu.lu