Women who are pregnant or have just given birth benefit from a certain number of advantages in the workplace, one of which is maternity leave. These advantages aim to protect the health of the women concerned and also allow them to devote themselves fully to their child after the birth.
Pregnant women have the right to:
- protection against dismissal as from the beginning of the pregnancy;
- special protection in terms of health and safety if they occupy a position involving specific risks;
- protection againt risks related to night work;
- exemption from work to allow them to attend their antenatal check-ups;
- several weeks of leave before and after the birth;
- a special organisation of their working hours if they are breastfeeding.
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Most of the administrative procedures related to pregnancy are mainly carried out by the pregnant woman working in Luxembourg as:
The employer, for his part, must grant her certain rights and respect certain specific formalities before, during and after the maternity leave.
Women with the self-employed worker status in Luxembourg also benefit from maternity leave. They only have the obligation to inform the National Health Fund (Caisse nationale de santé - CNS).
When an employee is pregnant and has duly informed her employer, she benefits from a series of rights and special protection measures.
During a job interview, pregnant women are not required to inform their prospective employer of their pregnancy.
If the employer asks the question, they do not have to disclose their pregnancy. Pregnancy forms part of the private sphere.
If a pregnant woman is hired, maternity protection only applies from the moment she informs her employer of her condition.
Informing the employer and the National Health Fund of the pregnancy
Employees are protected during the full duration of the pregnancy, from the moment the employer has been informed of their condition.
In order to prevent potential work-related risks during pregnancy, it is preferable to inform the employer as soon as possible in order to benefit, if needed, from an adjustment or change of the workplace.
Upon the employer's request or in case of a need for special protection (e.g.: hazardous work, night work, etc.), the employer can be given a medical certificate attesting to the pregnancy. In this case, the employee must submit the certificate:
- either by registered letter with acknowledgment of receipt;
- by giving it in person, in which case the employer must acknowledge receipt on the copy of the certificate;
- by fax or email, provided the certificate is transmitted in a clean and legible format.
The German document 'Mutterpass' is considered to be a valid confirmation of pregnancy.
The employee has the obligation to submit a recent medical certificate (issued 12 weeks before the expected date of delivery at the earliest) stating the expected date of delivery to both the National Health Fund (CNS) and her employer.
Employers may not terminate the employee's contract during the trial period if they have been duly informed of the pregnancy.
If an employee on a permanent employment contract becomes pregnant during her trial period, the trial period is suspended from the day the employee submits a medical certificate to her employer confirming the pregnancy.
The remaining time of the trial period will start running 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 or renewal of the fixed-term contract, which expires normally at the end of the term initially foreseen.
Protection against dismissal
Employers who have been duly informed of the pregnancy may not dismiss with notice an employee whose pregnancy has been confirmed by a medical practitioner. This ban on dismissal is valid throughout the duration of the pregnancy and for another 12 weeks after the birth.
If an employee is dismissed before her pregnancy has been confirmed by a medical practitioner, she has 8 days from the notification of dismissal to provide her employer with a medical certificate as proof of her pregnancy.
The employer must then annul the decision to dismiss with the employee's consent. In the event the employer refuses to annul the dismissal, the employee has 15 days following the termination of the contract in which she file a claim to the labour tribunal to demand that the dismissal be declared null and void.
In the event of cessation of business, the termination of employment is not declared null and void.
However, a pregnant employee's contract may be terminated in case of serious misconduct. Employers can request the employee's immediate suspension pending the decision of labour tribunal, but they cannot send the proper letter of dismissal on their own initiative. They have to file a request with the labour tribunal in order to be authorised to terminate the employment contract. The tribunal will assess the gravity of the misconduct and decide whether or not to validate the immediate suspension and thus terminate the employee's employment contract.
In the event of an irregular dismissal without a suspension that occurred in the conditions stated above, the president of the tribunal will order the reinstatement of the salaried woman in the business.
The employer must grant the exemption from work without loss of remuneration to allow pregnant women to attend their antenatal check-ups.
Protection of pregnant or breastfeeding women
Protection against work which is hazardous to health and safety
Employer must take measures to protect pregnant and breastfeeding women from risks related to hazardous work.
They must inform all female employees as well as the joint works committee, or failing this, the staff delegation and, where applicable, the equal opportunities officer:
- of the list of tasks that pregnant or breastfeeding women are not required to perform;
- and of the measures taken to avoid:
- any risks to the health and safety of these women;
- any possible impact on the pregnancy or breastfeeding.
Until these elections, the joint works committees currently in place will continue to carry out their tasks.
These tasks are divided into 2 categories:
- category 1 (activities that are likely to present a risk of exposure to certain agents, procedures or working conditions):
- tasks such as lifting loads of over 5 kgs;
- tasks involving a risk of falling or slipping;
- tasks requiring the employee to constantly be in a crouched or bent position.
- category 2 (activities which present a risk of exposure to certain agents or working conditions and put in danger the health and safety of employees):
- tasks exposing the woman to chemicals such as lead;
- tasks exposing the woman to biological agents such as toxoplasmosis or the rubella virus.
With regard to tasks in category 1, the employer must assess whether there is a risk to the employee's health and safety as well as possible repercussions on the pregnancy or breastfeeding. Where such risks have been detected by the employer, he must, in accordance with the occupational health practitioner's recommendation:
- either provisionally change the working conditions or hours to eliminate the risk;
- or, if it is technically or objectively impossible, transfer the employee to another workplace and maintain her current salary level;
- or, if the transfer is technically or objectively impossible, exempt the employee from work during the whole period which is necessary to protect her health and safety.
With regard to tasks in category 2, the employer, together with the occupational health practitioner, must determine which are the tasks that pose a threat to the health and safety of pregnant or breastfeeding women. Where the risks have been detected within the company, the employer must, in accordance with the occupational health practitioner's recommendation:
- either immediately transfer the employee to another position with the same salary as in her former position;
- or, if this transfer is not possible, exempt the employee from work during the whole period necessary to protect her health or safety.
Should the employee be exempt from work, the employer can stop paying her salary. He submits the certificate from the relevant occupational health practitioner to the CNS who, in return, will pay the employee a financial compensation which is equivalent to her salary.
Protection against night work
Pregnant or breastfeeding women may request exemption from night work (between 22.00 and 6.00) from their employer until their child's first birthday:
- either by registered letter with acknowledgment of receipt;
- or by having the employer sign a copy of the request as proof of receipt.
The employer must contact the occupational health practitioner within 8 days of receiving the request.
The occupational health practitioner will then determine whether the health and safety of the pregnant or breastfeeding woman are at risk and inform the employee and the employer of his decision within 15 days.
Employers are required to comply with the recommendations issued by the occupational health practitioner.
If the occupational health practitioner believes there is a risk, the employer must:
- either transfer the employee to a day time position;
- or, if this transfer is technically and/or objectively impossible, exempt the employee from work during the whole period which is necessary to protect her health and safety in agreement with the occupational health practitioner.
Should the employee be transferred to a day time position, the employer must continue to pay her the same salary as before. The employer forwards the approval from the relevant occupational health practitioner to the CNS in order to be reimbursed the difference between the salary for day time work and the salary for the night work carried out by the employee before her pregnancy.
Should the employee be exempt from work, the employer stops paying her salary. He submits the approval from the relevant occupational health practitioner to the CNS who, in return, will pay the employee financial benefits equivalent to her salary.
Conditions for the granting and amount of financial maternity benefits
In order to be granted maternity benefits during maternity leave, the employee or self-employed worker must have been affiliated with the mandatory sickness and maternity insurance fund for at least 6 months during the 12 months prior to the maternity leave.
Maternity benefits are paid during antenatal and postnatal leave. In principle, maternity benefits amount to:
- for a salaried worker:
- the highest salary received during the 3 months prior to the maternity leave, and;
- where applicable, the average amount of complementary and accessory benefits received during the 12 months preceding the month prior to the start of the maternity leave;
- for a self-employed worker: the contribution base in force at the time the maternity leave is taken.
Financial maternity benefits cannot be:
- lower than the social minimum wage, i.e. gross monthly amount of EUR 1,998.59 as of 1 January 2017;
- higher than 5 times the social minimum wage, i.e. gross monthly amount of EUR 9,992.95 as of 1 January 2017.
Maternity leave starts 8 weeks before the expected date of delivery.
If the birth occurs before the expected date of delivery, the days of antenatal leave not taken are added to the postnatal leave (however, the total duration of maternity leave may not exceed 20 weeks).
If the birth occurs after the expected date of delivery, the antenatal leave is extended until the effective date of birth, without reducing the duration of the postnatal leave, which remains 8 weeks.
An antenatal maternity leave calculation form is available on the CNS website.
Maternity leave continues 8 weeks after the actual date of delivery and can be extended by 4 weeks (i.e. a total of 12 weeks after delivery):
- in the case of premature delivery (i.e. before the 37th week of pregnancy);
- in the case of multiple births;
- in the case of breastfeeding (in this case, the employee sends the CNS and her employer a medical certificate as proof of breastfeeding established as from the 29th day after the delivery).
The expected date of delivery is 4 May, but the actual delivery takes place on 2 May, i.e. 2 days before the due date:
- the medical certificate stating the expected date of delivery can be issued as from 8 February, i.e. within the 12 last weeks of pregnancy;
- antenatal leave starts on 9 March, i.e. 8 weeks (56 calendar days) before the expected date of delivery;
- postnatal leave ends on 28 June, i.e. 8 weeks (56 calendar days) after the actual date of delivery + 2 days deferred from antenatal leave;
- in the event of breastfeeding, the certificate can be issued as of 31 May (i.e. from the 29th calendar day following the delivery) and the postnatal leave ends on 26 June, i.e. 84 calendar days from the actual date of delivery + 2 days deferred from antenatal leave.
Impact of the leave on the working relationship
Maternity leave is considered as an effective period of work.
Therefore, the employer must:
- take maternity leave into consideration when calculating the days of annual leave. The days of leave not taken by the employee prior to the beginning of maternity leave are deferred within the legal deadlines;
- take into account the period of maternity leave when calculating the seniority and related rights;
- keep the employee's position open while she is on maternity leave, or keep open an equivalent position corresponding to her qualifications and with a salary at least equivalent to her previous one;
- maintain the advantages acquired by the employee prior to her maternity leave;
- allow her to benefit from any improvements in working conditions introduced during her maternity leave.
During maternity leave, the employer must not deregister his employee from the Joint Social Security Centre (Centre commun de la sécurité sociale - CCSS).
The employer must also:
- suspend salary payments throughout the period of leave. The salary slips and 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 maternity leave;
- declare the absence of the employee to the CCSS in the monthly sick leave declarations.
The CNS collects the information required to pay out the maternity benefits from the CCSS.
Return to work
Any employee returning to work after the maternity leave must be granted breastfeeding breaks by the employer upon request.
The breaks for breastfeeding can be taken as follows:
- either in 2 periods of 45 minutes, one at the beginning and one at the end of the employee's normal working day;
- or in a single 90-minute period when:
- the working day is interrupted by a one-hour break only, and/or;
- the woman cannot breastfeed her child at a location close to the workplace.
Breastfeeding breaks must be considered as working time and paid accordingly.
The employer can ask the breastfeeding employee to provide a medical certificate as proof of breastfeeding.
At the end of the maternity 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
If the employee does not wish to return to work at the end of her maternity leave in order to be with her child, she can resign without notice without becoming subject to a severance payment.
Moreover, she may assert her right to priority for re-employment for a period of one year.
Resignation without notice is only possible in the event where the employee decides to give up her job in order to fully and exclusively devote herself to the education of the child.
Resignation without notice is not possible for women who simply wish to change employer at the end of their maternity leave.