While the State seeks ways to keep up with the spread of the virus, impacting all sectors and society in general, employers are finding themselves lost in a barrage of information coming in from every angle and not always in a consistent manner. What this article aims to do is set the record straight, bearing in mind that the pace at which events seem to be evolving, it might require updating by the time you get to the end of it!
Employers have a duty of care towards employees and are expected to identify hazards and take reasonable measures to control risk to safeguard the employees’ health and safety.
As things progress, we are experiencing a number of legislative amendments being published in rapid succession seeking to keep up with the circumstances we are now facing, and the measures being taken by the State. One such amendment now introduces the notion of ‘quarantine leave’. Introduced on 13 March 2020 by means of Legal Notice 62 of 2020, the Minimum Special Leave Entitlement Regulations (S.L. 452.101) have been amended to introduce this new leave entitlement.
According to this Legal Notice, quarantine leave is not taken out of an employee’s vacation leave and is granted to all employees regardless of sector and regardless of any Work Regulation Order and for any period of quarantine as may be determined by the authorities. As at the date of this publication, the quarantine period is of 14 days and is now mandatory on anyone coming into Malta from abroad, irrespective of the country of departure, and the employer is entitled to request evidence as proof for the employee’s eligibility.
Individuals caught breaching mandatory quarantine are subject to a €3,000 fine for each breach, with third country nationals also at risk of having their work and residence permit revoked, leading to deportation if they are found in breach of the quarantine orders.
In light of the unanswered questions that continue to prevail during this time, we have gathered your most frequently asked questions providing you with guidance. Should you require further assistance in this field, please do not hesitate to get in touch with us as we shall be more than happy to assist accordingly.
1. Now that this new quarantine leave has come in, should I amend my policy?
Yes. Due to this latest development, employers are obliged to provide quarantine leave over and above other leave entitlements due to employees if the applicable criteria are satisfied. A change in company policy relating to travel following 13 March 2020, including other measures necessary to help prevent the spread, should already be in place, so let us know if you need assistance in setting one up.
In view the recent legislative amendment and the additional obligation imposed on employers, employees who insist on travelling for non-essential reasons following this date could be subject to disciplinary measures, depending on the employer’s policies.
Where an employee is capable of working from home, quarantine leave would not materially affect the employer in the current circumstances where telework seems to be the order of the day, since the employee would still be productive, but will be obliged to stay home.
In addition, employers are also advised to establish procedures requiring employees to report promptly if they feel unwell or if they have had any known potential exposure to the virus. In such circumstances, the employee’s absence from work would convert to sick leave.
2. Can I voluntarily close the doors to my business for a temporary period, until the virus is controlled?
There are options. This is the question on everyone’s mind and, so far, the Government has only issued limited compulsory orders in this respect and other business may continue to operate normally, although some measures will probably be introduced within the coming days. Whilst we understand the dire situation employers are in, it is advisable to handle every situation with care, without taking any rash or hasty decisions. Of course, even though the quarantine measures may not be directly applicable, businesses are still being affected. For those employers considering other options to try and avoid redundancy as much as possible, there are some things that can be done.
Where employees cannot work remotely, employers have the possibility of putting employees on forced leave, subject to providing a written statement to its employees within a reasonable time frame before commencement of the leave also including the compelling reasons to justify the forced leave.
It is worth noting that forced leave is deducted from the employee’s annual leave entitlement and, once the entitlement is exhausted, the employer may not automatically shift onto unpaid leave and will have to continue to pay for those days which exceed the entitlement, without an obligation on the employee to reimburse in the event of eventual termination. There is, however, another possible toll for employers.
In general terms, an employer may not provide for conditions of employment which are less favourable to the employee than those set out at law. This rule may be disapplied in exceptional cases, in lieu of redundancy and with the approval of the Director of labour. Any approval is subject to review every four weeks however this could give the respite which employers require to have employees temporarily placed on unpaid leave until more concrete and long-term solutions may be found.
Notwithstanding the above, it is always recommended that these measures are only resorted to where employees cannot work remotely.
3. If clients decide to put our services on hold, would we able to ask employees working on such services to go on forced leave, even if they are able to work from home?
This depends. Given the way this situation is evolving, unless the employer has other work which employees working remotely can carry out, then the company could claim justified reasons compelling the imposition of forced leave and alternative temporary measures as indicated above.
4. What if I must close my doors as a result of governmental imposed restrictions?
If mandatory closure of businesses is imposed following Government directives, then one would assume that certain provisions regulating such closure would be included. In the event of mandatory closure without any employment-related provisions, then the company should follow the same procedure used in the event of voluntary closure, taking the relevant facts and circumstances particular to each employer and employee into account.
5. What if I decide to wind up my business and terminate all employment contracts?
In the event of prolonged closure and the removal of certain roles within the company, unless other assistance is provided, employers are likely to consider making employees redundant.
Apart from the order in which employees are made redundant and the obligation to re-employ in certain circumstances, the Collective Redundancy Regulations may be triggered depending on: (i) the number of employees employed; (ii) the number to be made redundant; and (iii) the period of time required to affect the redundancies.
These Regulations impose obligations relating to notifications and consultation, as well as a prohibition from effecting terminations before the formalities are complied with.
For more information and any assistance required, kindly contact us on firstname.lastname@example.org and email@example.com
We will continue to monitor the situation and provide you with updates.
Kindly note that 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.