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Finding the Perfect Balance between Employer and Employee Protection following the Outbreak of COVID-19

This article aims to shed further light on the various concerns which are currently being brought up by Maltese Employers due to the current pandemic. Employers are being faced with the dilemma of ensuring their duty of care towards their employees whilst at the same time safeguarding their business during this turmoil. The below is an overview of the relevant legislation together with clarifications to employers’ general queries emanating from the vast uncertainty sown as a result of the COVID-19 outbreak.

Published also in Times of Malta (Click to access the content)

Employers’ Duty of Care vis-à-vis its Employees

Employers are considered to have a duty of care towards their employees. The Maltese Occupational Health and Safety Authority Act provides that an employer is to ensure the health and safety of its employees at all times whilst carrying out their duties. This means that in the context of the Covid-19 pandemic employers must ensure that the necessary precautionary measures are implemented to contain the spreading of the virus. Such precautionary measures should include maintaining a clean and safe place of work, eliminating business travel, limiting human interactions by avoiding meetings and social gatherings, adherence to quarantine and self-isolation requirements as imposed by law and considering teleworking.

 Employees Tested Positive to Covid-19

Where an employee tests positive to the virus, he/she is entitled to avail of sick leave entitlement. By means of L.N. 99 of 2020 the employee is further requested to self-isolate for a period of time which the Superintendent of Public Health deems necessary.

 Employees under Mandatory Quarantine

If an employee was travelling and returned to Malta (from any country) on or after the 13th March 2020, he/she is subject to a fourteen-day period of mandatory quarantine as per L.N. 63 of 2020. During such period, the employee shall be entitled to Quarantine Leave as defined by L.N. 62 of 2020, which leave is considered to be Special Leave Entitlement and is over and above the yearly vacational leave entitlement.

 Temporary Suspension of Operations

If an employer is constrained to suspend the operation of its business on the order of the Superintendent of Public Health, the employer must make the necessary arrangements for employees to work remotely. Where this is possible, business shall resume as usual and employees will be entitled to the normal salary, provided that they fulfil their work duties.

On the other hand, if teleworking is not possible, an employer may consider opting for forced leave (utilisation of pro-rata vacation leave) followed by unpaid vacation leave. In case of forced leave, a written statement is to be provided to the employees outlining justifiable reasons for such forced leave. Furthermore, once the pro-rata vacational leave is exhausted employers may not automatically switch to unpaid leave since authorisation from the Department of Industrial and Employment Relations (DIER) is required.

Employers are to take note that the utilisation of forced leave does not give rise to a civil debt in their favour if forced leave exceeds the annual leave entitlement – which means that in such case employers shall pay employees for those days which exceed the annual leave entitlement.

 Permanent Closing Down of Business

In certain instances, the current circumstances are leaving employers with no choice but to permanently shut down the operations of their business. In such case, employees are to be terminated on grounds of redundancy and to be paid the relative notice period according to Maltese law. This depends on the term of employment. Furthermore, where a number of employees are being made redundant, the Collective Redundancies (Protection of Employment) Regulations (S.L. 452.80) are applicable. In such scenarios further (specific) rules are also applicable.

It is to be stressed that in the present circumstances termination of employment should only be considered as a last resort and employers are to make all possible efforts to avoid terminating employments.

Measures and Financial Aid Available to Employers

During this time, employers may also consider implementing further measures to avoid bankruptcy and redundancy. Such measures include:

  • Reduction of Weekly Working Hours;
  • Reduction of Weekly Working Days;
  • Removal of Allowances;
  • Freeze Wage Increases;
  • And in serious and limited cases only – Reduction of Wages.

It is important that such measures are only implemented by employers with the authorisation of the Department of Industrial and Employment Relations (DIER).

Employers may also benefit from various grants which have been recently introduced by the Maltese Government to support their business and operations. Such benefits include: Postponement of the Payment of Social Security Contributions; Teleworking Cash Grant; and the Mandatory Quarantine Grant.

The above is not to be construed as, or substitute, legal advice and only sets our generic views. Get in touch with our team of lawyers at DF Advocates who may provide further advice and assistance.

For information on this article or any specific Employment law enquiries, please contact Dr Joanna Mifsud by email at joanna.mifsud@dfadvocates.com.

Photo:Katemangostar – Freepik.com

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