The Coronavirus outbreak continues to spread and whilst its impact is currently contained, the threat of new countries being affected continues as the events which have recently occurred in Italy and the recent positive diagnosis of a Coronavirus case in Luxembourg have shown us. As it stands, China’s economy has been severely affected although it is now trying to ensure the country gets back to work. This shows the dilemma for employers: a business may be impacted by safeguarding measures such as temporarily closing down the company, but an employer also has obligations with regard to its workforce. What are these obligations for employers in Luxembourg?
Workers employed by a Luxembourg entity but who are working abroad, will normally be subject to the laws of the host country, unless the parties have decided to apply Luxembourg employment law to the extent permitted by local laws or mandatory obligations imposed by that state, for example as safety measure. In such a case, an employer would have the same obligations as if its personnel were employed in Luxembourg (in addition to local applicable laws of public order). This means that the employer is bound by the Luxembourg applicable occupational health and safety obligations, which is an obligation of result (obligation de résultat), i..e an employer must ensure that it has satisfied this obligation and not simply tried to (obligation de moyens).
A Luxembourg employer is bound by health and safety obligations, meaning that an employer must take into account all the occupational risks encountered by his employees. The nature and significance of these risks depend on:
- the sector of activity;
- the nature of tasks assigned to employees;
- the working conditions for employees (environment, equipment, technologies);
- the working procedures and practices; and
- the exposure of employees to chemical, physical and biological agents.
The means of ensuring the health and safety of the employee are multiple and can go as far as eliminating the root cause or adapting the workplace. Whilst some of these measures may not apply with regard to Covid-19, others are however applicable. Here is a non- exhaustive list of what employers can and should, or should not, be doing in relation to their health and safety obligations to their employees.
Plan risk prevention:
- Sending any personnel to affected regions should be forbidden or limited to people whose presence is essential. This will of course require a case by case assessment as the level of severity in a region may vary;
- If personnel have travelled to affected areas on business, place these employees in quarantine for at least a period of 14 days to avoid contamination. This also applies to personnel who have been to such areas on holiday. This should again be assessed on a case by case and on a country basis; and
- Require that personnel who have returned from an affected area undertake a medical examination.
Adapt the workplace:
- In order to avoid business trips, adapt the workplace to allow contact through other means, such as video conferences etc.;
- Provide necessary means for relevant personnel, such as those placed in quarantine, to be able to work remotely; and
- Provide antiseptic soap, masks, etc.
- Inform personnel of measures they should be taking, including how to wash their hands properly, avoiding physical contact, etc.;
- Inform personnel of the risk or propagation of Covid-19;
- Remind personnel of the contact details of the safety officer; and
- Train the safety officer if required.
Employers should avoid anything that could result in contamination of personnel and therefore the spread of the coronavirus. It is also important to note that an employer cannot require an employee to stay at home as a safety measure and account for that period as holiday.