News of the rapid spread of the Coronavirus Disease (COVID-19) in Northern Italy has sparked nationwide concerns about the possibility of contagion reaching our shores. To prevent the risk of infections in the Maltese islands, the Deputy Prime Minister and the Ministry of Health, in a press release dated the 25 February, advised individuals returning from China, Hong Kong, Singapore, Japan, Iran, South Korea and the Italian regions of Lombardy, Piedmont, Veneto and Emilia-Romagna to quarantine themselves for a period of 14 days.
Employers who have members of their workforce travelling to or returning from the above indicated regions should proceed with caution prior to taking any decisions which might affect the employment conditions of the affected employees. The possibility of self-quarantine is not specifically tackled in Maltese employment law but such a period of voluntary isolation from the workplace may be adequately dealt with by making proper use of the legal instruments currently at our disposal. We shall analyse the possible solutions, one by one, below:
1. Can employers force affected employees to take the self-quarantine period from their annual vacation leave entitlement?
The coming into effect of the Annual Leave National Standard Order (S.L. 452.115) in August of 2018 restricted the use of any type of forced leave to circumstances wherein the employer provides a written statement justifying the forced leave for compelling reasons, within a reasonable time frame before the forced leave starts to run. Therefore, if employers opt to go down the route of forced leave it shall be incumbent on the employer to justify his request based on the directives given by the Health Ministry as a result of the COVID-19 outbreak. If the days of forced leave taken due to the self-quarantine result in an employee exceeding his or her annual leave entitlement, such excess is not recoverable as a civil debt by the employer. Similarly, refusing an employee’s request to take vacation leave for planned time-off throughout the rest of the year because it would exceed the entitlement as a result of him or her having to take forced leave now would, in all probability, not be possible for an employer to do.
2. Can employers expect their employees to take the self-quarantine period from their sick leave entitlement?
Sick leave is defined under the Minimum Special Leave Entitlement Regulations (S.L. 452.101) as “leave granted to the employee whenever an employee presents a medical certificate certifying incapacity for work.” The difficulty here is that the self-quarantine of individuals returning from affected areas might not necessarily mean that they are incapacitated or unable to work since the self-quarantine is a preventive measure. Indeed, employees who are on self-quarantine and able to work from home could be requested to do so. In addition, depleting an employee’s sick leave entitlement when they are not sick, could result in an employee being forced to take unpaid sick leave should they become ill at any other point during the year. Taking this into consideration, unless the employee develops symptoms of the illness which render him or her incapacitated or incapable of reporting to work during the self-quarantine period, the utilisation of sick leave to cover the 14-day absence must be reasonably excluded.
3. Can employees take urgent family leave if their children are asked to stay home from school?
As normally happens in cases where parents need to stay home to tend to their children when they are ill, one must resort to utilising their annual vacation leave entitlement. However, urgent family leave may also apply since all full-time employees are entitled to take up to 15 hours of urgent family leave on grounds of force majeure affecting immediate family members, including children. Although this entitlement is taken from an employee’s annual vacation leave entitlement, the difference is that an employer cannot refuse an employee taking urgent family leave if the above conditions subsist.
One must bear in mind that if it is possible for the employee to work from home during the self-quarantine period (as a preventative measure), then there would be no issue of which leave entitlement is to apply since the employee is not incapacitated or incapable of working. Also, the law does not exclude the possibility of employers and employees reaching a mutual agreement on the use of the employee’s annual vacation leave entitlement to cover the self-quarantine period, however this option might be subject to practical difficulties since the employee’s consent is discretionary.
In conclusion, given the absence of any formal or informal guidance from the Maltese labour office so far, employers should seriously consider the possibility of deeming the quarantine period as a period of special absence with pay and as mentioned above, employers could also tie this one-off entitlement with the obligation to work from home when possible. Especially in circumstances where employees travelled prior to the publication of the Ministerial notice, employees should be granted this special absence with pay since they are hardly to blame for the situation they find themselves in.
On the other hand, employees who knowingly travel to areas affected by the virus in breach of a company policy, might be subjected to disciplinary action leading to the quarantine period being considered as unpaid leave. However, other considerations, such as the possibility of employees requesting employers to reimburse their flights due to last-minute cancellations prompted by their employer’s stance, must be taken into account, and disagreement on this issue could potentially lead to disputes.
It is recommended that employers release an interim policy in the form of a circular to its employees to notify how absence from work during self-quarantine is to be tackled. Also, employers and employees need to bear in mind that each situation needs to be determined on a case by case basis while keeping abreast of any developments issued by the relevant national authorities which affect their operations.
The above is not a substitute for legal advice and only sets out our generic views, which are likely to change when assessing specific circumstances.