The Labour Code does not contain specific provisions concerning meal vouchers.
In principle, meal vouchers are to be regarded in labour law as a benefit in kind and therefore constitute an element of remuneration within the meaning of Article L.221-1 of the Labour Code.
Article L.121-6(3), subparagraph 2, provides that “an employee who is incapable of working is entitled to maintenance of his full wages and other advantages deriving from his employment contract until the end of the calendar month within which falls the seventy-seventh day of incapacity for work during a reference period of eighteen successive calendar months […]”.
On the basis of that provision, meal vouchers should in principle be made available to an employee during the period for which the employer continues to pay his wages, insofar as they were provided for in the employment contract or constitute an established practice in accordance with the criteria laid down in the case law.
However, the Court of Appeal in 2015 dismissed a claim by an employee for meal vouchers during a period of incapacity for work on the ground that the aim of meal vouchers was to enable an employee to eat a main meal during a working day and excluded the use of meal vouchers after work and during periods of inactivity. In a judgment of 9 February 2017, the Court of Appeal also dismissed a claim of that kind on the ground that meal vouchers constitute a reimbursement of costs incurred in connection with work and not an element of wages to be paid each month.
It appears that the reasoning followed by the judges is based on the tax legislation which provides in particular, in Article 2 of the Grand-Ducal Regulation of 29 December 1986 on the implementation of Article 115(21) of the law on income tax, as amended, that the sole aim of meal vouchers is to enable an employee to eat a meal at a restaurant during a working day. Meal vouchers should therefore be given only to employees who actually do a day’s work.
Also, as matters stand, and in the absence of case law confirming entitlement to meal vouchers during periods of incapacity for work, the question of the provision of meal vouchers in those circumstances might be open to discussion.