Sick Leave: Employee and Employer Obligations in Luxembourg

1. What does the employee do on the first day of illness?

As soon as their health prevents them from working, the employee is subject to two successive obligations whose fulfilment conditions all the legal protections that follow.

Obligation 1 — Notify the employer on the same day

The employee must notify the employer (or their representative) of their incapacity on the very day it arises (Art. L.121-6, para. 1). The notification may be given:

• orally or in writing;
• personally or through a third party (a family member, for instance).

Practical case — Illness arising at the weekend

Obligation 2 — Submit the medical certificate within 3 days

The employee must submit to the employer a medical certificate confirming their incapacity for work and its likely duration no later than the third day of absence (Art. L.121-6, para. 2).

2. Will the employee be paid during sick leave?

The employer is legally required to maintain the employee's full salary and other contractual benefits for a limited period.

The 77-day rule over 18 months

Salary maintenance applies until the end of the calendar month in which the 77th day of incapacity occurs, calculated over a rolling 18-month reference period (Art. L.121-6, para. 3).

Calculating the amount maintained

The amount depends on the nature of the schedule:

• Schedule fixed until the end of the month: base salary + regular bonuses and supplements + scheduled surcharges.
• Schedule not fixed in advance: a daily allowance equal to the average daily salary over the previous 6 months (Art. L.121-6, para. 3).

3. Can the employee be dismissed during sick leave?

The 26-week protection period

The employer cannot give notice of termination or summon the employee to a pre-dismissal meeting during a period of 26 weeks from the day incapacity arises (Art. L.121-6, para. 3).

This protection applies provided the employee has met their two obligations: same-day notification and medical certificate within 3 days.

Protection applies even for serious misconduct

The dismissal protection applies even where the employer invokes serious misconduct (faute grave). However, once the 26-week period has expired, the employer may again terminate the contract, including for serious misconduct that occurred before or during the sick leave (Art. L.121-6, para. 3 and 5).

4. Special cases and exceptions to the protection

Exceptions to the dismissal protection

The 26-week protection does not apply in two situations (Art. L.121-6, para. 4):

• The incapacity results from a criminal offence in which the employee voluntarily participated.
• The notification or medical certificate is submitted after receiving a dismissal letter or a summons to a pre-dismissal meeting — except in cases of emergency hospitalisation, where the certificate may be produced within 8 days of admission.

Illness during annual leave

If an employee falls ill during their recreational annual leave, the days of incapacity covered by a medical certificate are not deducted from their annual leave entitlement (Art. L.233-11). Those leave days are preserved and may be taken at a later date.

To benefit from this rule, the employee must send the medical certificate to the employer within 3 working days of the onset of illness, if they are on Luxembourg territory.

5. Unfitness for work and professional reclassification

Declaration of unfitness by the occupational health doctor

When the occupational health doctor declares an employee unfit to hold their current post, the employer can no longer keep the employee in that role (Art. L.326-9, para. 3). This is a legal obligation, not a matter of choice.

The reclassification procedure

Under certain conditions, a professional reclassification procedure may be initiated to find a position compatible with the employee's remaining capabilities. Two conditions must be met simultaneously:

• the company employs at least 25 workers;
• the employee has at least 3 years' seniority with the company.

When these conditions are met, two routes are available (Art. L.326-9, para. 5 and 6; Art. L.551-1):

• Internal reclassification: the employer looks for a suitable post within the same company.
• External reclassification: if internal reclassification is impossible, the procedure is referred to the Joint Commission (Commission mixte), a tripartite body responsible for guiding the employee towards a role compatible with their health in another establishment.