Managing employee sick leave can become a real headache and raise many questions: What are the obligations of your employees in terms of notification? What protection are they entitled to? And what impact will this have on your business? This month, we take stock of the essential rules you need to know to manage these situations calmly and to avoid any administrative or financial complications.
Employee obligations when reporting sickness and protection against dismissal
When an employee is unable to work for medical reasons, he or she must fulfil two legal obligations:
- Inform his or her employer on the very day upon being incapacitated for work, either personally or through a third party, verbally or in writing (via message, e-mail, etc.);
- Provide, no later than the third day of absence, a medical certificate attesting to his or her incapacity to work from the first day of absence and specifying the expected duration of their absence.
If the absence should be extended, the same obligations must be fulfilled.
There is an exception in in the event of emergency hospitalisation, where the employee has eight days to submit the medical certificate. Submitting the certificate within this timeframe will nullify any dismissal that may have been issued in the meantime.
By complying with these obligations — i.e. notifying the employer on the first day and submitting the medical certificate by the third day at the latest — the employee is protected against dismissal from the first day of absence, for up to 26 continuous weeks.
The employee is protected against dismissal from the moment the employer is notified on the first day until the end of the third day of absence. This temporary protection is then confirmed once the medical certificate has been submitted by the third day at the latest.
If the medical certificate is not submitted by the third day of absence, the temporary protection granted by notifying the employer on the first day will lapse and the employer will once again be permitted to proceed with dismissal. Nevertheless, the employee regains protection against dismissal from the day the employer receives the medical certificate, even belatedly.
It is also worth remembering that a certificate attesting to attendance at a medical appointment does not constitute a medical certificate of incapacity for work and does not provide protection against dismissal.
Employer, CNS [National Health Fund]… What about submitting the medical certificate?
If the sick leave lasts only one or two days, the employer is free to request a medical certificate to justify the absence, provided this is stipulated in the employment contract or the company’s rules of procedure!
What about submitting the certificate to the CNS? If the incapacity for work does not exceed two working days, no declaration needs to be made to the CNS — neither by post nor by phone. For sick leave lasting three days or more, however, the medical certificate must be sent to the CNS before the end of the third business day of sick leave.
If the incapacity for work is prolonged, the new certificate must be sent to the CNS before the end of the second business day following the date for return to work originally planned (for example, if the initial certificate states a return to work on Wednesday but the incapacity for work is extended, the new certificate must be sent by Friday at the latest — the second business day after the planned return date).
Since 1 December 2024, medical certificates have to be submitted to the CNS via an online form on the CNS website. As a result, certificates can no longer be sent by e-mail. Submission by post remains possible, nonetheless.
Salary continuation, reimbursement… How much does sick leave cost?
When an employee is on sick leave, the employer is required to continue paying his or her full salary for the first 77 days of incapacity. The employer will then be reimbursed 80% of this salary cost by the Employers’ Mutual Insurance Fund, or 100% in cases of family leave or during the first three months of the trial period.
It is important to note that reimbursement will only occur if two conditions have been met beforehand: the employer must have declared the sick leave to the CCSS (Joint Social Security Centre), and the employee must have submitted his or her medical certificate to the CNS.
If no medical certificate of incapacity for work has been submitted, the Employers’ Mutual Insurance Fund will only reimburse two days of sick leave, irrespective of whether the employee is absent for two days or longer.
In cases where a medical certificate has been submitted, the Employers’ Mutual Insurance Fund will reimburse only for the dates indicated thereon. For example, if an employee falls ill on Monday but only sees a doctor on Tuesday, and the doctor issues the certificate starting from Tuesday (and not retroactively), the Monday will not be covered and will not be reimbursed by the Employers’ Mutual Insurance Fund.
Beware of fake medical certificates of incapacity for work!
The National Health Fund (CNS) has recently raised awareness among employers and employees about medical certificates of incapacity for work that can be ordered via online platforms without any consultation or examination by a doctor.
The CNS warns that any certificate obtained without direct contact with a doctor or issued by unknown medical practitioners will be rejected, and no benefits will be paid. Employees who make use of such certificates risk being fined:
- For a fake medical certificate covering a period of incapacity for work of three or fewer days: a fine of €200;
- For a period of incapacity exceeding three days: a fine of €500;
- In the case of repeat offences: the fine may increase to €750.
What control measures are available to the employer?
Sometimes, an employer may have legitimate doubts as to whether an employee is really incapacitated for work. In order to ensure fairness and prevent abuse, the law provides that the employer can request a medical examination.
The employer may thus ask the sick employee to undergo a second medical examination by a doctor of the employer’s choice. If the employee refuses to comply without a valid reason, his or her protection against dismissal will be lost. If the employee does undergo the examination, the medical certificate issued by the employer’s chosen doctor will not take precedence over the original certificate provided by the employee. In such a case, the employer must seek the opinion of a third doctor to settle the disagreement. Only if this third doctor concludes that the employee is fit to work will the employer regain the right to proceed with dismissal with notice, without having to wait for the end of the protection period.
This medical examination can also be initiated by the Social Security Medical Board (known by the French initials CMSS). If the CMSS determines that the employee is fit to work, the employee’s medical certificate is invalidated. This is referred to as a refusal decision from the CNS. This decision will be notified to the employer with instructions to stop paying the sick employee if the latter fails to return to work (even if the employee later provides additional medical certificates dated after the notification). In such a case, the employee’s right to continued full salary payment will cease.
Furthermore, the CNS may carry out administrative checks to ascertain the employee’s presence at home so as to ensure compliance with permitted hours of absence. These checks can be initiated at the employer’s request or by the CNS itself.
The employee is not allowed to leave his or her home between the 1st and the 5th day of sick leave, except to attend appointments with the CMSS or to receive medical care, diagnostic services, medication, or medical devices. It is not necessary to inform the CNS of these outings in advance, but the employee must be able to justify is or her absence if checked.
As of the 6th day onwards, outings authorised by the doctor in the medical certificate, will be allowed between 10:00 am and 12:00 noon, and between 2:00 and 6:00 pm.
For any meal taken outside the home, even from the 1st day of sick leave, the employee must apprise the CNS (even from the 1st day of sick leave) in advance by means of an online form.
Sick leave in Luxembourg, what should be remembered?
Sick leave entails specific obligations for employees and employers alike. A clear understanding of the rules regarding notification, the transmission of medical certificates, and medical examinations will help you anticipate risks and, most importantly, optimise reimbursement procedures. Our experts are available to support you through these processes and help make sure that employee absences are managed efficiently.
The HR Consulting Department of Securex provides a service to track reimbursement claims from the Employers’ Mutual Insurance, to relieve companies of this time-consuming task and ensure that every euro owed to them is properly returned.
