What are an Employer’s Rights in relation to the Spread of COVID-19?

Authors: Dr Karl Briffa, Dr Annabel Hili, Dr Francesca Hili and Dr Francesca Anastasi

The rapidly spreading Coronavirus disease has brought about several queries from both the employer’s and the employee’s point of view, particularly due to the absence of any formal guidance provided in our legislation for these scenarios. Initially, the Ministry for Health had issued guidance advising individuals to self-quarantine as a precautionary measure. This has been updated and at the time of writing individuals returning from Switzerland, Germany, France, Spain, Italy, China, Singapore, Japan, Iran and South Korea are to observe a mandatory quarantine for 14 days.

One needs to consider how local and European legislation can be interpreted in these force majeure situations given the uncertainty which is arising.

  1. Can employers ask an employee to inform them where they are travelling to?

From a data protection perspective, an employer should process only the smallest amount of personal data possible in order to sustain the employment relationship (data minimization principle). In this case, an employer has a legitimate interest in knowing whether any employee will be visiting any high-risk areas. In order to abide by the data processing principles established in the General Data Protection Regulation (“GDPR”), it would be advisable to  ask whether employees are travelling to any of the listed affected areas, rather than asking them where they are going in general.

  1. Can employers run medical checks on employees?

Medical data is considered to be a special category of personal data under the GDPR and it should only be processed in circumstances dictated by the law. For instance, asking anyone who enters the premises to undergo a temperature check will be considered processing of medical data, since the persons being subjected to the check are identifiable. Moreover, it is important to ensure that there is a valid lawful basis for processing.

It may appear that such medical checks are in the public interest however under the GDPR, processing for reasons of public interest should only occur on the basis of Union or Member State law which is proportionate to the aim pursued[1]. Since no such legislation has been published yet, public interest cannot be used as a basis for processing.

In this case, should an employer wish to check any individual who enters the premises (be they employees, suppliers or visitors), it would be advisable to engage a doctor to perform examinations in private. The results should not be communicated to the employer, who may only be informed whether the individual is fit or not fit to enter the premises. It is important to keep in mind that actions taken must be proportional to the present situation with regards to the outbreak and thus, caution is advised.

  1. If an employee has just returned from the above-mentioned high-risk countries or has plans to travel to the said countries in the near future, what leave should they be entitled to?

Given the extent of the outbreak, an employer has a legitimate interest to oblige employees to stay at home and where feasible to work remotely.

Sick leave will only apply if the employee starts to display symptoms of the virus and has obtained medical certification. Sick leave is defined as “leave granted to the employee whenever an employee presents a medical certificate certifying incapacity for work.”[2] The issue is that individuals who have returned from the above mentioned countries and are in quarantine are not necessarily unable to work as a result of having contracted Coronavirus and thus this cannot be classified as sick leave unless the employee develops symptoms of illness.

In order for the quarantine period to be classified as annual vacation leave, there needs to be agreement between the employer and the employee. An employer cannot deduct the quarantine period from an employee’s annual vacation leave without the employee’s approval to do so.

Maltese employment law allows an employer to utilize the equivalent in hours of up to twelve working days from the annual leave entitlement of employees for the purposes of whole or partial shutdown of the business premises (including to bridge public holidays).  According to the law such forced leave should be communicated to the employees by the end of January of each calendar year and thus it is debatable this may be applicable.

Considering that these are extraordinary circumstances and that the law does not provide for neither authorised leave of absence due to the precautionary self-quarantine nor the mandatory leave of absence being imposed on some of the above-mentioned countries, there is some uncertainty.

The Maltese Employers’ Association (MEA) has advised employers not to pay employees who are in quarantine, not yet showing symptoms and unable to work from home, unless returning from work related travel. However, the latter is solely a guidance note and a final decision on what leave is applicable, and whether paid or otherwise is required by the relevant authorities.  Therefore, in this respect, one would advise that whereas the employer should insist that the employee follows the recommendations/directives of the Ministry of Health, as to payment one should merely provide that the employer will follow the applicable legislation/directives on the matter, that way gaining time for the matter to be clarified finally by the competent authorities.

  1. What happens if GIG economy workers need to quarantine?

These workers are usually self-employed and their principal source of income is derived from work generated on their own account, and not on the basis of any employment arrangement with an employer, thus they are not entitled to the standard leave entitlement.

A self-employed individual under Maltese law is entitled to a sickness benefit paid by the Maltese government however the benefit starts to be paid from the fourth day of sickness.

With respect to GIG economy workers who cannot work remotely, the question which arises in this situation is: ‘if the self-employed individual is required to quarantine but individual cannot afford to not work for the quarantine period, what can the company do?’

The Company may have a beneficial interest in safeguarding its brand and thus may be advisable to come to an arrangement to ensure that the virus is not spread. For instance, in the United Kingdom, Uber has been quoted as saying that ‘it will compensate drivers when proper documentation shows that they have been diagnosed with the Coronavirus, or if they are placed in quarantine, asked to self-isolate or removed from the app for up to fourteen days.’

UPDATE:

A new Legal Notice amending the Minimum Special Leave Entitlement Regulations has just introduced a new paid leave known as Quarantine Leave and this in cases where employees are “legally obliged” to abide by a quarantine order confining the employee to a specific area or premises as determined by the Superintendent of Public Health or other public authority under any law.  As in the case of Jury Service, Quarantine Leave shall be for “as long as necessary”.  This new leave will apply irrespective of whether the relative employment is covered by a WRO or otherwise.

The application of this new leave particularly to the present circumstances does create difficulties which will need to be clarified over the coming hours and days including from which date this regulation is to be effective.  One also needs to understand how this new regulation will interplay in those cases where employees are able to work remotely from their “confined” areas or premises. However what is for certain is that all employers must make it clear with their respective employees that in present circumstances non-essential travel should be discouraged.

The above is not to be construed as legal advice and only sets out our general views which may change when assessing specific circumstances.

For further information about how GVZH Advocates can help you with your employment legal query, kindly contact us on employment@gvzh.mt.

[1] Article 9G of the GDPR

[2] Minimum Special Leave Entitlement Regulations (S.L. 452.101)

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