COVID Check in companies
Contents
- What is the COVID Check scheme in companies?
- What about the particular case of the company canteen?
- As regards the tests more specifically, how long are they valid for?
- Who is to pay for the tests under the COVID Check scheme?
- When does the COVID Check in companies become compulsory?
- What are the employer’s monitoring obligations?
- Is the monitoring time considered as actual working time?
- What are the employee’s obligations?
- As of 15 January 2022, what are the consequences of a person refusing to submit to the compulsory COVID Check regime or whose COVID Check is not valid?
- How should data received by employees during the COVID Check be processed pursuant to the GDPR?
- In case of non-compliance with the COVID Check obligations, what are the risks for the employer and the employee?
————————————————————————
- What is the COVID Check scheme in companies?
When the Covid Check is applied in the company, this means that entry to the premises is restricted to persons who can show either:
- a vaccination certificate;
- a certificate of negative PCR or rapid antigenic test;
- a certificate of recovery;
- a certificate of contraindication to vaccination, accompanied in such a case by a negative test certificate (PCR of 48 hours or rapid antigenic of 24 hours) or a negative result of a self-test to be carried out on site.
This is known as the “3G” scheme (Geimpft, Genesen oder Getestet – Vaccinated, Cured or Tested), which is compulsory in companies as of 15 January 2022.
The COVID Check scheme exempts you from the mask and social distancing requirements. It is nonetheless recommended to continue to comply with the other COVID-19 pandemic measures: airing rooms, disinfecting surfaces, cleaning hands, avoiding handshakes, etc.
- What about the particular case of the company canteen?
As of 17 December 2021, the COVID Check will apply as follows in company restaurants and canteens: employees/clients eating there will be subject to the “2G” regime (Geimpft oder Genesen – Vaccinated or Cured) while the staff of the company restaurant or canteen will remain subject to the “3G” regime.
What are known as “leisure” activities and establishments such as “conventional” restaurants automatically fall under the “2G” COVID Check scheme. Company restaurants and canteens must also follow the same rationale.
- As regards the tests more specifically, how long are they valid for?
The period of validity of the PCR nucleic acid amplification tests (NAAT) is reduced from 72 to 48 hours.
The validity of the rapid antigenic tests (RAT) is reduced from 48 to 24 hours. This means that unvaccinated and uncured employees will have to be tested every day or two.
We advise employers such as yourself to make your employees aware of the waiting time for test results, which they should therefore take duly into account.
In addition, these tests should be carried out outside working hours.
- Who is to pay for the tests under the COVID Check scheme?
In principle, the costs of the tests are to be borne by the employees, who have the option of being vaccinated free of charge in order to avoid having to be tested.
Furthermore, as of 15 January 2022, employees who agree to be vaccinated will be able to be tested free of charge between the first and second doses of the vaccine.
Screening centres run by the Luxembourg Army will be deployed across Luxembourg so that employees who need a negative test certificate between their two doses of vaccine can quickly obtain a valid COVID Check and go to work.
As an employer, you may also decide to reimburse the cost of the tests to your employees.
- When does the COVID Check in companies become mandatory?
- Until 14 January 2022
The employer is in no way required to implement the COVID Check system in the company. It is an option, not an obligation, and it is left to the discretion of each employer.
If the employer opts to implement the system, he can also decide to place all or only part of his company under its purview.
There are 3 such obligations and they differ slightly depending on the number of employees in the company.
These obligations are as follows:
- prior information-consultation of the staff delegation in companies with fewer than 150 employees or participation of the staff delegation in the decision in companies with at least 150 employees (in the absence of an agreement, the implementation of the COVID Check system will not be authorized);
- prior notification of the COVID Check system to the Department of Health by electronic means. This notification must specify the scope of application of the COVID Check (location and dates or periods covered);
- visible display of the COVID Check system applicable in the company.
In our opinion, the employer should draw up an explanatory note on the introduction of the COVID Check system as well as the arrangements for its implementation in the company (posting, management communications, etc) so as to ensure good internal communication and understanding of the forthcoming rules.
- As of January 2022
As of 15 January 2022, the COVID Check in companies will be generalized and will become compulsory until 28 February 2022, subject to possible extension.
It is planned that the scheme will be applicable in the entire premises of companies, for employees as well as for external parties. “3G” individuals, i.e. those who have been cured, vaccinated and tested, will have access to the premises.
The company may however define areas where the COVID Check scheme is not applicable so as to be able to welcome external persons or customers as and when necessary. In these areas, the mask and social distancing rules will apply to all, employees and people from the outside.
As the COVID Check scheme becomes compulsory, the employer is no longer required to inform/consult the staff delegation beforehand in companies with fewer than 150 employees or to obtain co-decision in companies with at least 150 employees. The delegation will not be able to block or condition the implementation of the scheme.
In addition, companies will be exempted from the notification procedure to the Health Directorate.
- What are the employer’s monitoring obligations?
The employer is required to monitor his employees on a daily basis and may carry out the monitoring himself or delegate it to one of his staff. He can also call on a third party service provider.
The inspection can take place at any time. This means that it is no longer necessary for all employees to produce their certificate on arrival at their workplace and upon each entry.
However, as the employee must be in possession of a valid certificate at the beginning of his or her working day, it is recommended that the check be carried out as early as possible in the working day.
During this check, the employer or his delegate will verify the identity of the certificate holders by comparing it with that shown on an identity document, i.e. any official document with a photograph proving a person’s civil status (e.g. identity card, passport or driving licence).
To facilitate checks, the employer is allowed to keep a list of employees who have been vaccinated or have recovered. Entry on this list is voluntary. The list may contain only the full names of the employees who have been vaccinated or recovered and the period of validity of the certificates. Registered persons may ask to have their names removed from the list at any time without any explanation or justification. The list will be destroyed as soon as the COVID check is no longer compulsory in companies (currently scheduled to end on 28 February).
- Will this checking time be considered as actual working time?
Yes, as the employee is at the disposal of his employer while waiting for his COVID Check to be performed, the time required for this purpose must be considered as actual working time and must therefore be paid to the employee.
The employee should not be penalized if the arrangements chosen by the employer do not allow a quick scan of the QR code, especially if only one person is assigned to this task and many employees arrive at the same time.
- What are the employee’s obligations?
The employee is required to carry a valid “3G” COVID Check to the workplace.
It is the employee’s responsibility to carry an official legible certificate.
- As of 15 January 2022, what are the consequences of a person refusing to submit to the compulsory COVID Check scheme or whose COVID Check is not valid?
As with the voluntary introduction of the scheme, an employee or person from the outside/client who does not produce a valid “3G” COVID Check certificate at the time of the check will be denied access to the company or any place of performance of their employment contract.
The alternatives available to the employee will be as follows:
The employer and the employee can agree on telework. As this form of work performance requires a bilateral agreement by and between the parties, they must agree and neither can impose it on the other.
If telework is not possible or is not accepted, the employee will have to take time off with the prior consent of his or her employer, pursuant to Article L.233-10 of the Labour Code.
If the employer refuses to allow the employee to take time off, the employee will have to return home without pay for the duration of his absence. The employee therefore automatically loses the part of his remuneration corresponding to the hours not worked.
This period of unpaid leave will not result in the employee’s disaffiliation from the Centre Commun de la Sécurité Social” (Social Security Office), as he or she will retain his or her right to health care benefits.
In terms of pension insurance, in order to safeguard the employee from losing his rights for the month concerned due to hours of non-payment, the employer will pay the pension contributions (16%) up to a maximum of 64 hours per month. This payment shall be made on the average of the last three months preceding the month for which pension insurance contributions are due. The employer will therefore pay the 8% employer’s share and can recover the 8% employee’s share from the employee’s future wages (over a maximum period of 6 months).
Furthermore, the failure to produce a valid certificate and the resulting absences are not grounds for dismissal or for disciplinary action.
The period of non-payment will be treated as a period of actual work for the calculation of leave and seniority rights.
- How should data received by employees during the COVID Check be processed pursuant to the GDPR?
The Luxembourgish authorities have made available the CovidCheck.lu application in order to carry out COVID Checks by scanning the QR codes. This application enables the inspector to view the forename and surname as well as the green or red result attesting to compliance with a COVID Check or otherwise.
According to the National Commission for Data Protection, the scanning of a QR code via the CovidCheck.lu application constitutes processing of personal data, including health data.
Therefore, the employer is in principle not authorized to collect or store information about the health of his employees and is completely prohibited from keeping a list of vaccinated and non-vaccinated employees.
Exceptionally, however, the new COVID Act of 16 December 2021, grants the employer the option of keeping a list of employees who have been vaccinated or have recovered, in line with certain conditions allowing the list to comply with the GDPR.
Registration on this list must be voluntary and contain only the name of people who have been vaccinated or have recovered as well as the period of validity of the certificate. Each employee will have the possibility to withdraw from the list at any time without justification. The period of validity of this list may not exceed the period of validity of the law. At the end of the period of validity, the list will be destroyed.
The employer may therefore start keeping a list as of 17 December 2021 in order to facilitate the COVID Check.
- In case of non-compliance with the COVID Check obligations, what are the risks for the employer and the employee?
The COVID Check and its correct application may be inspected by the Labour and Mines Inspectorate.
The employer is liable to administrative fines of up to €4,000 in the event of non-compliance with the “2G” COVID Check “in his company restaurant or canteen, and up to €6,000 in the event of non-compliance with the requirement to carry out a check upon entry.
Employees are liable to a criminal fine of €500 to €1,000 if they enter the workplace without a valid COVID Check.
Working hours put in without a valid COVID Check certificate will not be paid.