By: Eloise Hullar, Firm: Castegnaro
A new law will provide disabled employees or those in ‘external reclassification’ with the possibility of assistance in the workplace to facilitate their integration.
A new law introduces ‘assistance activity for inclusion in employment’ (‘assistance activity’) to supervise and promote the integration of disabled employees into the labour market through support adapted to their needs. The measure also covers employees who are in ‘external reclassification’, meaning that they have been declared unfit for their previous working role for health reasons.
The new law of 1 August 2019 (‘Law of 1 August 2019 supplementing the Labour Code by introducing assistance activity for employment inclusion for disabled employees and employees in external reclassification’, the ‘Law’) was published in Mémorial A n°545 of 14 August 2019. The Law will come into force on 1 February 2020.
The assistance activity is carried out by an inclusion assistant, either as a self-employed person or as an employee of an assistance service. An approval issued by the Minister responsible for Policy on Individuals with Disabilities is required to exercise assistance activity.
Who can benefit from the assistance?
The Law applies to employees recognised as disabled workers or those in external reclassification who are engaged under employment contract by an employer, and who are beneficiaries of an ADEM (the Luxembourg national employment agency) measure with a private sector employer.
Procedure for obtaining assistance
The request for assistance must be addressed jointly by the employee, the employer and the assistant or assistance service to the ADEM Director using a form drawn up by ADEM.
The request must in particular:
- Identify the assistant or assistance service. The assistant or assistance service must be chosen jointly by the employee and the employer from a list published in the Official Journal of the Grand Duchy of Luxembourg.
- Identify and describe the problems arising in the employment relationship, accompanied by certain supporting documents, specifically a job description with the rate of employment in that post and a copy of the employment measure or employment contract.
The Director of ADEM has one month from receipt of the request to notify the employee, the employer and the assistant or assistance service in writing of his agreement or refusal. If the Director accepts the request, the assistant or assistance service can proceed to:
- evaluate the work situation;
- draw up a description of the employee's specific problems and needs in the workplace;
- identify the employer and the employer's staff’s needs;
- establish the duration and frequency of assistance required;
- draw up an individualised inclusion project (the ‘Project’).
The assistant or assistance service must submit the Project to the ADEM Director, the employee and the employer within one month of receiving notification of the agreement. If the employee and the employer agree with the content of the Project, they must send a request to the ADEM Director to cover the services of the assistant or assistance service. The ADEM Director then has one month from receipt of the request to agree to or refuse the Project and notify the parties.
- In the event of refusal the parties may submit a new revised Project within one month of receiving notification of the refusal. Failing this, the decision to refuse will become final.
- In the event of an agreement: the parties will enter into a collaboration agreement (the ‘Agreement’).
A copy of the Agreement and, where applicable, a copy of any amendment to the Agreement, must be sent to the ADEM Director.
Duration of and financing for the assistance
An agreement from the ADEM Director entitles the Employment Fund (Fonds pour l’Emploi) to cover the cost of the assistant's or assistance service's services for the number of hours and duration provided for in the Project. The number of hours of assistance granted is set as follows:
- a maximum of 150 hours for a contract or employment measure of at least 12 months but less than 18 months;
- a maximum of 125 hours for an employment contract or measure to promote employment of at least 18 months but less than 24 months;
- a maximum of 300 hours for an employment contract or measure to promote employment of at least 24 months.
In the event of a change in the employee's disability or state of health, or the adaptation of the employee to the workplace the duration and frequency of the assistance provided for in the Project can be adapted by the ADEM Director, at the reasoned request of the employee, the employer and the assistant or assistance service.
Termination of the Agreement
Either party can terminate the Agreement by registered letter on the following grounds:
- Non-compliance by one of the parties with the provisions of the Agreement. However, the party wishing to terminate the Agreement must first give notice requiring the other party to comply with the provisions of the Agreement. Termination can only take place at the end of a one-month period from the formal notice.
- The existence of facts making it immediately and definitively impossible to maintain assistance relations.
The letter of termination must state precisely the fact(s) alleged against the other party. A copy of the termination of the Agreement must be sent without delay to the ADEM Director. The financial coverage for the assistance will end on the termination date of the Agreement.