Chronic Absenteeism

Chronic Absenteeism: An Overview with Céline Lelièvre

What protection is granted to employees who are on long-term incapacity leave? What are the rights and obligations of the employer? Provided that the employee complies with their obligation to inform the employer, including during extensions of sick leave, the employer is not authorized, even for serious cause, to terminate the employment contract within 26 weeks from the onset of the incapacity for work. The employee is protected during this 26-week period.

First, it is important to note that protection against dismissal is set for a period of 26 weeks, and any interruption of this period—whether due to a return to work or recreational leave—triggers a new 26-week protection period. However, exceeding this 26-week threshold does not automatically entitle the employer to terminate the employment relationship. So what can be done when an employee remains continuously unfit for work beyond this 26-week limit?

The Luxembourg Court of Appeal, in a decision dated 13 February 2025[1], has reiterated the applicable framework for cases of chronic absenteeism.

In this case, an employee had been absent continuously due to illness for six months. Still unfit for work after the 26-week period granting legal protection against dismissal had expired, the employee was dismissed with notice.

The employee challenged the dismissal, arguing that the absences were due to “professional psychological exhaustion”, that he had repeatedly complained about deteriorating working conditions, and that his supervisor was aware of the situation. Moreover, he claimed that the repeated and prolonged absences over six months were fully covered by medical certificates, duly issued by a psychiatrist, due to burnout caused by excessive stress imposed by his former employer. He thus argued that his incapacity was directly causally linked to the performance of his employment contract. The employer, on the other hand, argued that the prolonged absence had impaired the proper functioning of the company.

The Court reiterated that chronic absenteeism is considered a legitimate reason for dismissal with notice, as long as the absences cited by the employer harmed the company’s operations and the employer did not have reliable information to believe they could count on the future presence and availability of the employee. The Court also held that a chronic absence of six months exceeds the normal operational risks that an employer is expected to bear, adding that, according to established case law, a continuous absence of six months is presumed to affect the proper functioning of the company in question.

According to the Court, this presumption applies regardless of the cause of the absences—unless the absences directly result from a workplace accident or a disease contracted due to work. There is thus a limit to this presumption: the employer cannot dismiss an employee for chronic absenteeism if the incapacity results from the performance of the employment contract. However, it is then up to the employee, who is contesting the dismissal, to prove that their chronic illness, lasting more than 26 weeks, is the direct result of a work accident or occupational disease and to demonstrate the causal link between their incapacity and the performance of their contract.

In this case, the Court, echoing the first judges’ analysis, held that the mere fact that the incapacity certificates were issued by a psychiatrist was not sufficient to establish a causal link between the employee’s incapacity and their work, since such psychiatric disorders can have multiple personal, family, or social causes, unrelated to the working conditions of the dismissed employee.

It is worth noting that in this case, the employer denied any link between the prolonged absence and the employee’s working conditions, demonstrating that the employee had “always strictly adhered to the contractually agreed working hours” and had worked overtime only “very rarely”.

Since the employee failed to establish a direct link between the cause of his absenteeism and the performance of his contract, the Court held that his continuous absence was presumed to impair the proper functioning of the company, and that the employer’s lack of reliable information during this extended period—information that might have allowed them to believe they could rely on the employee’s future availability—further supported this presumption.

The dismissal was therefore declared valid.

[1] Judgment No. 19/25 – III- TRAV – Case No. CAL-2023-00600