Quarantine and EmploymentPublished on: 27 July 2020
The Government has stipulated that all those travelling into the UK from Spain, including the Balearic and Canary Islands, from 26 July onwards must self-isolate for 14 days. It has also warned that such measures might be applied from time to time in relation to any other country to which a requirement to “quarantine” does not currently apply if its rate of COVID-19 infection increases sufficiently.
What, then, are the options for employers in relation to employees who will are prevented from returning to work when due at the end of their annual leave?
Working from home
In any event, the advice of Public Health England remains until 1 August that people who can work from home should continue to do so; and from that date, whilst it will be at the discretion of employers as to how staff can continue working safely, working from home will be one way to do this; and in Wales the public health advice is to continue to be that workers are only allowed to return to the work place if it is not reasonably practicable for them to work from home.
However, the requirement to self-isolate on returning from abroad will mean that any children in a household will not be able to receive external childcare, and particularly where there are younger children, that could interfere with the ability to work from home of some employees who would otherwise be able to do so unimpeded.
As has been the case during the closure of schools and nurseries and other interruptions to childcare arrangements during the virus outbreak, employees with childcare responsibilities might be able to overcome this in whole or in part by agreeing with their employers to alter their working patterns for the 14-day period so that they can alternate childcare duties with a partner and/or do some work when their children are in bed.
When an employee cannot work because they are self-isolating due to a test and trace direction or a member of their household having displayed officially recognised symptoms of COVID-19, they will be deemed to be incapacitated and, if they otherwise qualify, they will be entitled to statutory sick pay (“SSP”).
However, the mere requirement to self-isolate following a return to the UK will not constitute deemed incapacity under the amended rules relating to SSP.
For the amended rules relating to SSP in connection with the coronavirus, click here.
Furlough under the CJRS will only be a possible option if an employee has already been furloughed for at least 3 continuous weeks by 30 June, or returned from maternity leave or military mobilisation after 10 June.
Employers should exercise caution before furloughing an employee who is required to quarantine as, depending on the circumstances, this might constitute an abuse of the CJRS and, if challenged by HMRC, for example in the event of an audit, could result in not only a requirement to repay monies paid to employees, but also penalties.
Clearly, if an employer can demonstrate that the employee would have been furloughed after their return from holiday in any event, to implement that will not be an abuse.
Otherwise, if an employer has other employees on furlough, it might consider placing an employee who is required to quarantine on furlough in place of another employee: this surely couldn’t be seen to be an abuse of the CJRS as the total number of employees on furlough would remain unchanged.
An employer might agree that an employee can take annual leave that would have been available to take later in the holiday year and/or in the next holiday year to cover all or part of the quarantine period.
If holiday is to be brought forward from the next holiday year, the employer should ensure that the employee still has not less than the statutory minimum 5.6 weeks holiday (28 days for a full time work) during the next year. That might be achieved, in some cases, where an employee has a contractual holiday entitlement of in excess of 5.6 weeks, by bringing forward holiday during the next year as well.
A well drafted employment contract will ensure that if the employment ends at a point where the employee has taken more holiday than they have accrued, the value of the excess holiday pay received will be repayable, including that it will be deductible from any monies outstanding to the employee. Where a contract does not provide for this, it would be prudent for the employer to agree in writing, as a condition of bringing holiday forward, that this will be the case.
Some employers might be prepared to make discretionary payments to employees for all or part of a quarantine period. This is a commercial decision for any employer – but before doing that, we would encourage them to consider the potential disgruntlement that might be caused to other employees who have exercised caution and decided against holidaying abroad, only to see their colleagues who did not do the same receive extra paid leave.
The bottom line is that if and to the extent an employee who is required to self-isolate on returning from abroad cannot work, absent any special arrangements agreed by the employer as per the above, the employee will not be entitled to be paid.