COVID-19 FAQs: An Employer's Perspective - UPDATED

COVID-19

14 Mar 2020

The COVID-19 virus is disrupting our lives, including our businesses. The situation is very dynamic and businesses should be able to react quickly.  We have developed COVID-19 related FAQs for businesses, to help give an initial steer on the legal implications that might affect day-to-day operations and business continuity. Please don’t hesitate to get in touch with your usual WH Partners contact if you have any further questions. 

UPDATE 14 March 2020: In response to the constant development relating to the COVID-19 outbreak and the uncertainty brought about by the eventual imposition of forced quarantine, the Minimum Special Leave Entitlement Regulations (Regulations) have been amended to include a definition of “quarantine leave”.

In what circumstances can quarantine leave be availed of?

The Regulations provide that quarantine leave is special leave to be granted to the employee, without loss of wage, in such cases where the employee who has arrived in Malta from any country, is legally obliged to abide by a quarantine order confining the employee to a certain area or to certain premises as determined by the respective health authorities.

The Period of Quarantine (Extension of Countries) Order, 2020 states that a mandatory quarantine order shall apply also in respect of people who live in the same residence as a person who is subject to abide by a quarantine order. This means that such individuals are also entitled to avail of quarantine leave.

(Updated 16 March 2020)

How does this amendment affect employers?

The quarantine leave is a special paid leave in addition to other leave entitlements that for which employees are eligible. Therefore, when any periods of obligatory quarantine are imposed by the respective health authorities, an employer is required to provide employees with a special paid entitlement when absent from work due to mandatory quarantine orders. This entitlement is over and above any other leave entitlement. However, if such employees can telework, then the employer is not obliged to pay quarantine leave, and employees will be paid their normal wages. You should consider ensuring that any teleworking policies in place are up to date, and that any employee who does telework has signified their understanding and acceptance of the policy.

(Updated 16 March 2020)

When does the special quarantine leave entitlement begin to apply?

The amendment came into force, with immediate effect, on 13 March 2020. With this new amendment, when an employee is obliged to abide by a quarantine order determined by the Superintendent of Public Health under the Public Health Act, the employer is required to pay quarantine leave to that employee. Needless to say, if an employee can telework, then the employer is not be obliged to pay quarantine leave to the employee. 

(Updated 16 March 2020)

Should this amendment affect all industries irrespective of any sector-specific industry working orders in place?

The Regulations are silent in this respect and therefore by implication this amendment shall be effective in respect of all employees regardless of the sector. Therefore, even employees who fall under the Wage Regulation Order should be entitled to quarantine leave.

(Updated 16 March 2020)

What about situations where employees travelled notwithstanding the travel ban or when quarantine is not compulsory?

The amendment fails to cater for situations where an employer is obliged to pay quarantine leave and when he/she is exempt from doing so. As a general rule, the Regulations state that in any circumstance where an employee is obliged to abide by a quarantine order, the employer shall pay quarantine leave to the employee. However, for such quarantine leave to be availed of, the quarantine order should have been determined by the Superintendent of Public Health. This means that unless otherwise stated in the Public Health Act, employers are not obliged to pay quarantine leave. Thus, employees who decide to self-quarantine cannot avail of quarantine leave.

While it is always encouraged that companies implement specific policies targeting the COVID-19 wherein employees are informed that unnecessary travel is to be avoided or if impossible to avoid, may only do so upon the company’s authorisation, the law will always prevail. This means that even if employees travel notwithstanding the travel ban and in breach of the company policy, the employer is still obliged to pay them quarantine leave. However, the employer may take disciplinary action against the employee for breach of company policy. 

(Updated 16 March 2020)

What if I do not pay the quarantine leave entitlement to my employees or I deduct it from another leave entitlement?

The employer will be in breach of the new amendment and thus in breach of the Regulations. Any breach of the Regulations is subject to a fine of €465.87.

(Updated 14 March 2020)

What are my responsibilities as an Employer?

As an employer you have a duty of care towards your employees. You should therefore take reasonable measures in order to mitigate health and safety risks to your employees. Your obligation is to identify hazards, control and evaluate risk and adapt work processes to safeguard the employees’ wellbeing.

You should, as a minimum, keep abreast of developments and notices issued by public authorities and act accordingly, and you should keep a log of the steps you take in order to safeguard your staff’s health.

(Updated 13 March 2020)

Should I take any extraordinary measures in respect of members of staff with a pre-existing health condition?

If you are aware that an employee has an existing health condition, you should discuss with that employee what additional precautionary measures might be required, and you should then form a view basing yourself on what a reasonable person would do. 

If an employee has not informed you that he has a pre-existing medical condition, we don’t think that you can be held accountable for not taking additional precautionary measures in respect of that employee.

(Updated 13 March 2020)

What practical steps should I take?

This will vary depending on the industry in which you operate.  An advisory business, a business in the digital sector, a factory, and a retail outlet operate very differently from one another.

Below are a few examples of measures you could take:

  • follow and encourage cleaning practices as recommended by national health authorities;
  • consider providing face masks and other protective equipment;
  • if not currently in place, develop a policy in respect of sick leave, forced leave, annual leave or unpaid leave;
  • require your employees to follow national health recommendations on self-quarantine;
  • allow employees to work from home.

(Updated 13 March 2020)

What information should I share with employees?

You should clearly communicate measures you adopt and the timeframes within which they will be implemented.

(Updated 13 March 2020)

Do I need to take any specific steps before allowing or requiring employees to work from home?

As an employer you must follow the Telework National Standard Order (SL 452.104) and should have in place a teleworking policy.

An agreement covering the necessary employment conditions should be entered into. Although in this case your employees will be working remotely, as an employer you should always respect their private and family life. For example, as an employer, you cannot implement monitoring measures which may interfere with an employee’s privacy, such as demanding the use of live cams during normal business hours.

Are there any schemes or incentives in place aimed specifically to assist businesses financially?

In encouraging employers to implement telework to mitigate further spreading of the virus, the Government of Malta has issued, as part of the Malta Enterprise Business Development and Continuity Scheme, a ‘Facilitation of Telework Activities’ incentive as a means to provide undertakings with business assistance. The primary purpose of this incentive is to provide a form of aid in the form of a cash grant to facilitate and support employers who have incurred eligible telework expenses pursuant to a telework agreement following the corona virus outbreak in Malta. The grant shall be awarded against 45% of the eligible cost which must be incurred after the 1st March 2020 up till the 30 March 2020. 

In addition to the above incentive, the Government of Malta has issued a ‘Postponement of Payment of Certain Taxes Scheme’ with the aim of giving a two-month extension to undertakings, including self-employed, to pay Provision Tax, VAT and National Insurance Contribution on Salaries.

(Updated 16 March 2020)

Should my employees continue to travel on business? What about business meetings locally?

As an employer who must exercise duty of care towards his/her employees, you must as a minimum, have a policy in place prohibiting all non-essential travel and encouraging all non-essential meetings with third parties to be either postponed or held via electronic means of telecommunication. Thankfully we are in an era where technology can keep us connected without the need to physically meet. If meetings are inevitable, certain precautionary measures should be taken and as an employer you should ensure that your employees are adhering to such measures. These might be as simple as staying at least a metre away from each other, avoiding unnecessary contact including handshakes, and ensuring that the venue is well ventilated.

Where possible, documentation requiring signatures should be signed electronically.

(Updated 13 March 2020)

Can I ask my staff what personal travel they have planned?

Yes, in the current circumstances, it is in your legitimate interest to request and collect from your employees’ specific information about their travels, i.e. the destination, the duration and the dates of said travels.

(Updated 13 March 2020)

Can I ban employees from personal travel? Am I obliged to reimburse employees for incurred travel costs?

It is our opinion that travelling to the high-risk areas should be prohibited and should be subject to approval by HR. Any other unnecessary travel to both local transmission countries as well as low risk countries should also be avoided.

Given that the COVID-19 outbreak might be classified as ‘force majeure’ the employer shall not be obliged to reimburse employees for travel costs which they had incurred.

(Updated 16 March 2020)

What if my employees do travel?

As a minimum you should follow national guidelines in respect of those countries which require mandatory quarantine. However, in industries where in-person presence is not crucial to business, adopting a stricter approach is likelier to satisfy the reasonableness test if your decision were ever challenged and your liability as an employer claimed.

(Updated 13 March 2020)

How will the time in quarantine be accounted for? Leave? Sick Leave? Working from home?

Employees who are in a position to work from home while on quarantine should be allowed to work from home and no leave entitlement should be deducted for their absence from the place of work. However, if they are unable to work due to being sick, then such absence should be considered as sick leave and treated accordingly.

Where an employee disregards the company’s instructions and decides to travel to a high-risk area, as an employer you may enforce disciplinary action against that employee. However, as the amended law currently stands, even if one of your employees disregards the company policy and decides to travel, you are nonetheless obliged to compensate that employee with paid quarantine leave.  This applies only in the case where employees cannot carry out their work except from the work place.

(Updated 16 March 2020)

When can an employee return to work?

If an employee is on mandatory quarantine, the guidelines by the public health authorities should be duly followed and an employee should not be allowed to return to work before the end of the quarantine period. Employees showing any symptoms of sickness, should not return to work before they are certified fit for work by a doctor.

(Updated 13 March 2020)

How do I prepare myself for an eventual lockdown?

As an employer, you should take time to test the company’s IT infrastructure in order to ensure business continuity in the eventuality of a mandatory lockdown. You should also ensure that your employees’ contact details are updated and readily available.

(Updated 13 March 2020)

What if as a result of lockdown or other measures, I am unable to perform obligations vis-à-vis third parties?

You should refer to agreements in place and check for force majeure provisions. If you foresee a lockdown and that you might not be able to perform certain obligations, you should consider entering into proactive (and pre-emptive) discussions with your contractual counter parties. You should also familiarize yourself with your insurance cover and whether the possibility exists for you to make an insurance claim in such case.

(Updated 13 March 2020)

What happens in the case of business downturn and not enough work is available for all the employees?

Rather than immediately making employees redundant, you may opt to enforce forced leave on those employees whose duties are not required for a temporary period of time. This could be an interim solution until the situation is stable. If no positive improvement is seen, then you may have to consider making those roles redundant. It is noteworthy that where forced leave exceeds the annual leave entitlement of the employee, it shall not constitute a civil debt in favour of the employer.

ALSO SEE:

Coronavirus Updates:

Coronavirus Update: Travel restrictions and your rights as a travel or tour operator

Coronavirus Update: Publication of application forms to benefit from fiscal measures announced

Coronavirus Update: More fiscal measures to support businesses and individuals in Malta

Coronavirus Update: COVID-19 Impact on the EUIPO as of 16th March 2020

Coronavirus Update: Europe’s Budgetary Responses

Coronavirus Update: Suspension of statutory limitation and court filing periods in Malta

Coronavirus Update: First economic measures launched to help business in Malta

Coronavirus Update: Action plan adopted by the Malta Gaming Authority (“MGA”) and the Malta Business Registry (“MBR”)

Coronavirus FAQs:

Coronavirus FAQs: Statutory limitations and court process

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The information above does not, and is not intended to, constitute legal advice and should not be relied on as such. For any specific matters kindly seek legal assistance.