Covid 19 – Employment Measures

What is quarantine leave?

On the 13^th March 2020, Legal Notice 62 of 2020 (the Minimum Special Leave Entitlement (Amendment) Regulations) came into force to make provision for quarantine leave. Quarantine leave is defined as “leave to be granted to the employee without loss of wages in such cases where the employee is legally obliged to abide by a quarantine order confining the employee to a certain area or to certain premises as determined by the Superintendent of Public Health under the Public Health Act or by any public authority under any other law”. Therefore, employees who return from travel and are obliged to self-quarantine, are now entitled to be paid for such period of quarantine. Such amendment does not appear to be retroactive in effect, i.e. it is not applicable for periods of self-quarantine before the amendment came into force.

Can the employer impose travel restrictions?

A question which arises is whether the employer can prohibit employees from travelling, considering that upon the employee’s return, the employee will automatically be entitled to this paid quarantine leave. There is a strong argument to be made that the employer, in such circumstances, can impose a travel ban except for essential travel. The consequence of a breach of such a ban by the employee would potentially result in the employee not being entitled to be paid for such quarantine leave, apart from being subject to disciplinary measures.

Leave in case of business shutdown:

If the employer shuts down his business temporarily, this may result in a situation of forced leave (to be deducted from the employee’s annual leave). In such cases the employer is to provide a written statement to the employees prior to the commencement of the forced leave giving justified reasons for such leave. Once the annual vacation leave of the employee has been exhausted, unpaid leave is not automatic since the forced leave would be a measure ordered by the employer. The Annual Leave National Standard Order specifically provides that the utilization of forced leavedoes not give rise to a civil debt in favour of the employer should the leave taken exceed theannual leave entitlement of the employee. Therefore, in such cases, the employer is to seek authorisation from the Department of Employment and Industrial Relations prior to enforcing any period of unpaid leave.

Changes in employment contract terms:

Faced with economic hardship caused by a temporary closure of the business or a reduction of income, employers might want to explore other options prior to making employees redundant such as a reduction in the working hours. Prior to effecting any such changes which have the aim of avoiding redundancies, employers need to obtain the prior approval of the Department of Employment and Industrial Relations and this in agreement with the employee or union representative.

How should the employer deal with sick employees?

An employer has a general duty, under occupational health and safety laws, to ensure the health and safety of workers at all times in every aspect related to work. Therefore, the employer is to ensure that any employee who should be undergoing a self-quarantine period, is in fact doing so and is not attending work at the workplace. Moreover, if the employer has a suspicion that an employee is showing symptoms of illness, such an employee should be requested to stay at home and if possible, be tested. Processing by the employer of the results of such testing (i.e. processing of medical data) may be justified in order to take the appropriate preventative measures for the safety of other employees. The GDPR contemplates specific scenarios where the processing of such data is allowed (in particular, where processing is necessary to protect the vital interests of data subjects or other natural persons, for reasons of substantial public interest, purposes of preventive or occupational medicine and reasons of public interest in the area of public health). Nonetheless, employers must ensure that they always adhere to the principles of proportionality, fairness, transparency and lawfulness. Anyinformation stored and collected by the employer about the employees should, as always, still be limited to what is necessary and the employer must ensure that access to such information is limited to only those people who require such access (e.g. HR and other employees as might be relevant).