By Matthew Brincat , Firm: Ganado Advocates
News on the coronavirus (COVID-19) keeps gaining momentum and so do employment law questions about the virus. This article provides some guidance for employers in Malta.
There have been many articles published on the medical elements of coronavirus and how to prevent its spread, but it is also important for employers to consider how to apply the local employment law rules where employees contract the virus, where there is a suspicion that they have contracted the virus and in circumstances where the 14-day so-called ‘voluntary quarantine’ needs to be applied.
Whilst we know that the risk of catching coronavirus in workplaces in Malta is currently low, the usual pay entitlements and sick leave entitlements in the Wage Regulation Orders, the Special Leave Regulations of 2007 or in any collective agreements applicable to an employee apply if someone has coronavirus. That is the easy part.
The tricky bit is the application of employment law in situations where:
- An employee is not sick but their employer tells them not to come to work as a precaution, because, for example, someone has returned from China since the virus started and their employer asks them not to come in (so-called voluntary quarantine); or
- Because the employee has traveled to high risk or infected areas, the authorities of a country require that an employee stays in quarantine (such 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 does not seem to be an appropriate option. Nor would it be appropriate to deduct ‘forced leave’ from the employee’s leave entitlement without his or her consent. So, what kind of leave can the employer put an employee on in this situation, bearing in mind that none of this is the employer’s fault but the result of what would be legally classified as force majeure?
In the current situation there are probably three options. The employer and employee may agree that the quarantine period should be counted 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 sick leave rules to this situation. This makes sense if you consider that the fundamental principle of sick leave is that the individual is ‘unfit for work’. The third solution would be paid special leave, which would be granted over and above legal entitlements.
This three-pronged solution is also being applied by the UK and is the most sensible way of applying the rules in these extraordinary circumstances. It should also be said that the above potential entitlements would only apply in situations where the employee cannot work from home. If remote working is possible, remuneration should continue to be paid.
Finally, it would also be appropriate for employers to apply some form of disciplinary measure to employees who withhold information on their travels, or who intentionally travel to affected areas knowing that they might be quarantined upon return.