*Disclaimer: Given the speed at which new laws, regulations, and policies have been implemented to control the COVID-19 pandemic, it is possible that the responses below will be impacted.*
Has vaccination been made mandatory in your jurisdiction?
Vaccination is not mandatory under Luxembourg law.
Can an employer require compulsory vaccination? If yes, are there any exceptions or special circumstances that an employer must consider?
Employers are not authorized to impose mandatory vaccination on employees from a Luxembourg employment law standpoint. The decision to be vaccinated falls within the scope of an employee's physical integrity, and the employee retains total discretionary decision-making power in this respect. Furthermore, although employees must undergo medical examinations required by law, medical professionals do not have the right to inform employers about an employee's vaccination status.
The only situation in which vaccination could become mandatory is if the government were to decide to make the Covid vaccine compulsory for specific categories of workers – for example, for employees who come into contact with at-risk populations daily at work (such as those in the healthcare sector), or for at-risk individuals themselves. Previously, there was an ongoing discussion in Luxembourg about imposing mandatory vaccination on individuals over 50 and caregivers, but this is currently on hold.
Can employers require the wearing of masks in the workplace?
There is no longer any legal obligation for employers to require their employees to wear masks (except in care facilities and on public transport). Thus, without a legal basis, employers should not be allowed to impose a mask requirement. However, employers are permitted to encourage sick employees and/or those with Covid-19 symptoms to wear a mask when at work.
Can employees refuse to be vaccinated? How does an employer need to balance its obligation to provide a safe work environment with an employee's rights?
In sectors where vaccinations can best assure the safety of employees and third parties (the health care sector, for example) and where an employee has expressed their refusal to be vaccinated against COVID-19, the employer may consider changing the employee's tasks to protect the health and safety of everyone involved. However, such a change must not constitute a sanction against the employee. For sectors where it is possible to work from home, employers may, as a precautionary measure, set up a remote working arrangement with the employee to avoid risking contamination in the workplace.
Employers can set up testing or vaccination centers for their employees, but these remain subject to the fundamental principle of each employee's freedom to participate or not.
In the event of a refusal, can an employee be dismissed for refusal to comply with the employer's vaccination policy? Will the employee's refusal constitute just cause for termination?
Any sanction imposed upon an employee for their refusal to get vaccinated would, in our view, be considered direct discrimination based on the employee's health status and would therefore likely be regarded as unfair (abusive). Note that Luxembourg law provides criminal penalties for discrimination based on health status.
What benefits or accommodations do employers have to make for vaccinated employees?
Under Luxembourg law, employers must provide no specific benefits or accommodations for vaccinated employees.
Can vaccinated employees refuse to work in the same vicinity as employees who are not vaccinated?
In Luxembourg, the employer or other employees can't know the vaccination status of any particular employee. Employees are not granted access to the vaccination status of their co-workers and so do not have the necessary information to refuse to work in the same vicinity as other employees on that basis. Where employees choose to inform their co-workers that they aren't vaccinated, co-workers still do not have a right to refuse to work in the same vicinity.
In your country, are employers required to provide paid leave for employees to get vaccinated?
The law does not provide additional paid leave for employees to get vaccinated. As with all medical appointments, if an employee has an appointment to be vaccinated, the employer should authorize this temporary absence. The employee should strive to make such appointments early in the morning or at times likely to cause the least disruption to business operations. The employee can be asked to prove that the absence was due to a medical appointment and provide evidence of this (a certificate from the doctor) if the employer requests it.