Insights

As all news items on coronavirus (COVID-19) keep gaining momentum, so do the related employment law questions which surround this ever-spreading virus.

There have been many articles published on the medical elements of this virus and how to prevent its spread. However, one needs to consider how to apply the local employment law rules both in cases where employees contract the virus or if there is a suspicion that they contracted the virus. More importantly in circumstances where the so-called ‘voluntary quarantine’ of fourteen days needs to be applied.

Whilst we know that the risk of catching the virus in workplaces is currently low, the usual sick leave entitlements which emerge from the Wage Regulation Orders, the Special Leave Regulations of 2007 or the collective agreements applicable to an employee and pay entitlements, apply if someone has coronavirus. This is the easy part.

The tricky bit would be the application of employment law (a) in situations where an employee is not sick, but their employer tells them not to come to work as a precaution. This is the case if someone has returned from China since the virus started, (the so-called voluntary quarantine). There are also situations where (b) the employee has travelled to high-risk or infected areas and the authorities of a country ensure that, that person stays in quarantine (such as those employees who have been on lock-down on a cruise ship etc.).

In these situations, common sense needs to prevail. Leave without pay for the employee is not an option. Neither would ‘forced leave’, which would be deducted from the employee’s leave entitlement without consent. So, what kind of leave can the employer apply, bearing in mind that none of this is the employer’s fault but is a result of what would be legally classified under force majeure?

In the current situation, there are probably three options. The first solution is that the employer and employee may agree that the quarantine period is to be classified as vacation leave, but that needs to be agreed by both sides. The second alternative (which splits the financial burden between the parties) is the application of the provisions of sick leave to this situation as well. This makes sense since the fundamental notion behind sick leave is that the individual is ‘unfit for work’. The third solution would be the application of paid special leave, which is given over and above legal entitlements.

Indeed, this three-pronged solution is being applied by the UK as well and is the most sensible way of applying the rules in this extraordinary circumstance. It should also be said that the above potential entitlements would only be applicable in situations where the employee cannot work from home, as in this case, one’s remuneration should continue to be paid.

Finally, it would also be equitable for employers to apply some form of disciplinary measure to those employees who withhold information on their travels or who intentionally travel to affected areas knowing that they might be quarantined upon return.

The above is not to be construed as legal advice and professional advice should be sought from your legal advisor of choice.