Bill 7489 amending Articles L 234-51, L 234-52, L 551-2 and L 552-1 of the Labour Code – which relate to family leave and professional reclassification – was tabled in the Chamber of Deputies on 10 October 2019. The bill modifies the right to leave for family reasons and provides details on occupational reclassification.
Currently, the Labour Code provides that employees with a dependant child aged between 13 up until their 18th birthday are entitled to family leave in case of the child's illness only if the child is hospitalised.
The bill intends to provide an exception to this condition when children aged 13 years or older:
- benefit from the additional special allowance under Article 274 of the Social Security Code;(1) or
- have been certified by a doctor as having a 'disease' or 'deficiency of exceptional gravity', as defined by the grand-ducal regulation referred to in Article L 234-52 of the Labour Code.(2).
Thus, in the above instances, employees could claim days off for family reasons even if their child has not been hospitalised.
In addition, the bill would allow both parents to take family leave simultaneously in the above instances.
The current wording of Article L 552-1 of the Labour Code suggests that the Mixed Commission as jurisdiction over decisions relating to the determination of compensatory allowances and professional indemnity in the context of a reclassification. However, these decisions fall solely within the remit of the National Employment Agency (ADEM), with the Mixed Commission limited to granting or rejecting claims for compensation.
Therefore, for the sake of legal clarity, the bill:
- amends Article L 552-1 of the Labour Code to specify that the Mixed Commission will decide only on the award of professional indemnity or a compensatory allowance; and
- expressly adds to Articles L 551-2(3), Paragraph 10 and L 551-5(7) of the Labour Code that these two allowances are calculated and paid by the ADEM.(3)
This amendment would clarify what remedies are available to citizens – in particular:
- appeals of decisions taken by ADEM on compensation amounts will be heard by the Special Commission; and
- appeals of decisions taken by the Mixed Commission concerning the award of compensation will be heard by the Board of Referees for Social Security.
?For further information on this topic please contact Guy Castegnaro or Ariane Claverie at Castegnaro by telephone (+352 26 86 82 1) or email ([email protected] or [email protected]). The Castegnaro website can be accessed at www.castegnaro.lu.
(1) Article 274 of the Social Security Code states that "any child under the age of eighteen, receiving the family allowance and suffering from one or more conditions constituting a permanent insufficiency or diminution of less than fifty percent of the physical or mental capacity of a normal child of the same age, is entitled to an additional special allowance".
(2) Under Article 1 of the Grand-Ducal Regulation of 10 May 1999, 'diseases' or 'deficiencies of exceptional gravity' are cancerous diseases in the evolutionary phase and pathologies resulting in hospitalisation in an acute sector lasting more than two consecutive weeks.
(3) The bill clarifies this provision, although the reform of the reclassification system which is underway (Bill 7309) considers this point. However, the legislature considers that it is important to mitigate "as soon as possible and pending the new texts, the current situation which presents an indisputable legal uncertainty including the remedies available to citizens".
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