Post-holiday quarantine: what should employers do?
With thousands of British holidaymakers having travelled to Spain after the easing of lockdown restrictions, many have been caught out by short notice quarantine requirements imposed by the British Government.
The newly imposed quarantine requirements demand that people travelling from Spain to the UK must self-isolate for 14 days, and during this period they are not permitted to leave their homes unless doing so to access medical care or buy essential supplies. For employees who can work from home, this does not necessarily cause a significant issue. However, many employees who are unable to work from home now must stay away from work for 14 days longer than expected.
As James Champness highlighted earlier this week, there is no entitlement to statutory sick pay for employees who cannot do their job from home but cannot attend work as a result of the quarantine requirement. Quarantining employees are therefore facing an unenviable decision between taking further holiday to cover the quarantine period, taking unpaid leave or having to cancel their holiday altogether because they cannot afford not to be paid for two weeks after they return.
This has inevitably caused a tricky issue to navigate for employees and employers alike. We have considered some of the key issues surrounding this below.
Are certain employees exempt from the quarantine requirements?
The quarantine rules may not apply to certain workers, including healthcare professionals, road hauliers, postal workers, UK residents who ordinarily travel overseas at least once a week for work, workers involved in essential maintenance of data infrastructure or information and technology professionals whose work relates to response to security threats or incidents. Specific advice should be taken by employers and employees to determine whether they are exempt from the quarantine requirements.
If an employee cannot work from home but has to quarantine, should an employer still pay them?
As outlined above, this category of employee is not entitled to statutory sick pay and further, if they cannot do their job they technically have no entitlement to pay even if they are ready and willing to work. As this does create a very difficult situation for employees, employers have been encouraged by the government to try to be flexible in these circumstances. Employers can work to soften the blow to employees. This may be by taking a view on what pay can be offered to an employee during the 14 day quarantine period, or by being creative about work that employees could carry out from home (albeit given the current economic climate, this may not be an option for all employers).
Another alternative would be to consider allowing the employee to take further holiday during the quarantine period. Usually holiday notice requirements would prevent employees from being granted up to two weeks of holiday at such late notice. However, if employers are willing to relax these requirements, some employees may prefer to use their holiday entitlement to ensure that they are paid.
What about business travel?
Where an employee has been required by their employer to travel as part of their role and has had to quarantine on their return, the situation will be different. Refusing to pay an employee during a self-isolation period caused by business travel will not only sour employee relations, but may also cause a breach of mutual trust and confidence. This potentially could result in a situation where an employee (with two years’ service) could resign and claim constructive unfair dismissal in response to this breach. As such, employers in this situation should ensure that employees are paid during any such self-isolation period where they cannot work from home or, if they cannot afford to continue paying employees who are not working, remove the requirement for business travel.
Can we furlough employees who are having to quarantine?
There does not appear to be a restriction on furloughing employees who are required to self-isolate on their return from travel, but Government guidance on this is not currently clear cut. The ability to furlough employees at this stage in time will still be subject to the requirement for that employee to have been furloughed previously for a minimum period of 3 weeks ending on or before 30 June 2020. Employers considering this option should take specific advice on this approach to ensure that it is compliant with the Coronavirus Job Retention Scheme.
What if employees don’t tell their employer they are required to quarantine or try to come into the workplace?
Failure to comply with quarantine restrictions could result in criminal prosecution and a fine for the individual of up to £1,000. In the first instance this should deter people from breaching the quarantine requirements. Employers should also actively ensure that any employees who are required to self-isolate after travel do not attend the workplace. If they did turn up they should immediately be sent home. If employers fail to do this, then they risk breaching their legal duty to ensure the health and safety of their employees.
Going forward, employers may wish to remind employees of the absence reporting policy, as well as alerting them to the serious risks to the employee and employer for failing to comply with the self-isolation requirements.
Can employers restrict staff from taking holiday or going abroad in the future?
It is not within an employer’s powers to restrict or dictate employees’ travel during their holidays, even if the employee may need to self-isolate as a result. Employers can inform employees of the possible consequence if they end up having to self-isolate (i.e. facing a period without pay or disciplinary action (see further comments on this below)) to deter them from travel, but ultimately it is the employee’s decision as to whether they take this risk during their annual leave.
Employers do have the ability to cancel employee holiday provided that they comply with statutory minimum notice requirements of such cancellation (notice must be more than or equal to the length of the holiday proposed) or such longer notice periods set out in any company policy or employment contract. Employers must also provide reasons for cancellation and give the opportunity to re-book. However, this approach is unlikely to go down well with employees, not only because they will lose their holiday but also because they may lose money through last minute cancellations. Employers should also be mindful of the purpose of annual leave (to provide employees with a period of rest from work) and the wellbeing benefit of this. Additionally, employers are also obliged to ensure that employees take a statutory minimum number of days’ holiday (5.6 weeks under the Working Time Directive) so should be conscious that a failure to do so could create exposure to employee claims.
Unilateral cancellation of employee holiday should therefore be treated with caution. Employers may prefer to discuss the issue with employees with the aim of and to attempt to reach an acceptable arrangement for both parties.
Can employers discipline employees if they can’t work due to self-isolation?
It will likely be considered a heavy handed approach to discipline employees who had quarantine requirements imposed whilst they were on holiday. If an employee chooses to visit a country which is subject to quarantine rules before travelling, the approach to any disciplinary action may be different as that employee has deliberately chosen to take action that will prevent them from carrying out their role. The extent and nature of any disciplinary action should be considered on a case by case basis.
How should employers deal with the potential for this happening again?
As we are at the very beginning of the summer holiday season, and given the unpredictability of coronavirus rates and the likelihood of government responses to spikes in infection rates overseas, employers would be well advised to consider what their overall policy will be on post-holiday quarantine. Employers may wish to outline to employees at an early stage what the consequences will be if they take the risk of going abroad and are caught out by quarantine rules imposed during their trip (particularly where employees cannot work from home). This will also assist employees by allowing them to make an informed decision on taking their holidays. If there is a risk that an employee could go two weeks without pay post-holiday, then it is important that employees are made aware of this before travelling.
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