Proposal to Include the Right to Disconnect to the Luxembourg Labor Code

On April 30, 2021, the Luxembourg Economic and Social Council (Conseil économique et social, “CES”) issued an opinion on the right to disconnect.  In its opinion, the CES recommended that a new provision, L. 312-9, entitled “Respect for the right to disconnect,” be included in the Labor Code.  This new article proposes to (i) define a right to disconnect program and (ii) implement the right to disconnect program.

Specifically, L. 312-9 provides that when employees use digital devices for their work, a right to disconnect scheme should be defined at the employer or sector level to ensure that the right to disconnect outside of working hours is respected.  The proposed article recommends that the program be implemented via a collective bargaining agreement or a subordinate agreement.  For companies with at least 150 employees, the right to disconnect program may be implemented after the staff delegation has been informed and consulted, or by mutual agreement with them.  If there is no staff delegation, employers should define and inform employees about the right to disconnect program.

The CES’s opinion also includes the content that should be included in the right to disconnect program.  The program should be adapted to the specific situation of employers or their sector and, in particular, should define (i) the practical arrangements and technical measures for disconnecting from digital devices, (ii) awareness-raising and training measures and (iii) compensation arrangements in the event of one-off exceptions from the right to disconnect.  In addition, the new article would provide sanctions in the event of a breach.  Sanctions for any breach of the requirement to implement a right to disconnect program would include an administrative fine of between €251 and €25,000.

Finally, the CES opinion states that although the right to disconnect currently is not discussed specifically in Luxembourg legislation, several provisions in the Labor Code already provide safeguards regarding disconnecting from technology, including (i) the rights and obligations applicable to working time and (ii) the rules applicable to workplace health and safety and employers’ general duty to ensure all employees’ health and safety.

We continue to monitor legislation and guidance that affect workplace relations outside the U.S.