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Coronavius Outbreak – Employment Considerations

In light of the recent coronavirus (COVID-19) outbreak, global and nationwide concerns have emerged as how to contain and restrict this pandemic. Precautionary measures are being implemented with the aim of preventing the transmission and spreading of this virus.

Employers are currently being faced with a problem when determining off-work periods taken by employees for any reasons relating to the virus. Where an employee has contracted the coronavirus, the usual sick leave entitlements, the Special Leave Regulations and/or the collective agreements are applicable.

However, questions arise regarding employees who have travelled to high-risk countries and have not been certified to have the coronavirus. Employees working in the public sector returning from China, Hong Kong, Singapore, Japan, Iran, South Korea and the Northern part of Italy (regions of Lombardy, Piedmont, Veneto and Emilia-Romagna) have been advised to self-quarantine for fourteen (14) days. In such situations, the employee is being requested to work from home during the self-quarantine period as a preventative measure, in which case there is no issue relating to leave entitlement. However, where this is not possible, the below is to be taken into consideration.

Leave Entitlement

The Annual Leave National Standard Order (S.L. 452.115) allows forced leave only for compelling reasons. Therefore, if the employer decides that the quarantine period is to be deducted from the employee’s leave entitlement, such reasons must be based on the directives issued by the Health Ministry. Furthermore, if the forced leave exceeds the employee’s annual leave entitlement, the excess is not recoverable as a civil debt by the employer. Moreover, the employer might be faced with another issue if the employee requests leave during the rest of the year and this request is rejected on the basis that it exceeds his or her entitlement as a result of this forced leave.

Sick Leave

When considering the sick leave entitlement, the Minimum Special Leave Entitlement Regulations (S.L. 452.101) defines the term ‘sick leave’ as: “leave granted to the employee whenever an employee presents a medical certificate certifying incapacity for work.” Individuals having to self-quarantine might not necessarily be incapable to work. Moreover, reducing the period of self-quarantine from one’s sick leave could end up in the individual having to take unpaid sick leave during the rest of the year. Considering this, deducting the self-quarantine period from one’s sick leave when there are no symptoms of illness which render the individual incapable for work should ideally be avoided.

Special Leave

Employers should consider classifying the quarantine period as special absence with pay e.g. urgent family leave due to a force majeure in which case such leave is still deducted from the employee’s annual vacation leave entitlement, the difference being that the employer cannot refuse the employee’s request to take this special leave.

Disciplinary measures

In light of the above, special absence with pay seems to be the best way forward. However, as highlighted above, such leave entitlement should not be considered where the employee may work from home. Furthermore, disciplinary measures are to be implemented where employees knowingly travel to affected areas and/or fail to provide the employer with the required information – in which case such quarantine period is to be taken as unpaid leave.

Employers are also urged to review travel requirements. According to the OHSA, employers should also consult the Superintendence of Public Health regarding any measures that should be taken before allowing an employee to return to work when returning from abroad.

The above is not to be construed as, or substitute, legal advice and only sets our generic views.

Our team of lawyers at DF Advocates provide advice and assistance on all aspects of employment law. For further information or any specific enquiries, please contact us on info@dfadvocates.com.

Photo: Jetty

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