Post-travel quarantine: Options for employers
So what are the options available for employers to deal with this unexpected hurdle? We answer some frequently asked questions.
The government’s short-notice announcement this week that travellers returning to the UK from Spain will have to quarantine for 14 days, has caught many employers and their staff by surprise.
Returning UK holiday-makers, arriving back in the country on or after 26 July 2020, will now have to self-isolate at home, or at the home of a friend or family member. During the 14-day quarantine period they are not permitted to leave that address except to obtain medical care or essential supplies. They will not be permitted to attend work.
Although post-travel quarantine measures have been in place since 8 June 2020, the government has set out a list of low-risk countries or ‘travel corridors’, with no self-isolation requirement.
The sudden removal of Spain, the UK’s favourite holiday destination, from that list means that many employees already abroad, or shortly to travel, now face the prospect of being away from the workplace for two weeks longer than originally anticipated.
So what are the options available for employers to deal with this unexpected hurdle? We answer some frequently asked questions below.
Does the quarantine requirement apply to all employees?
No. It is important to note that some groups of employees are exempt from the quarantine rules, regardless of the country they travel from. These include road haulage and freight workers travelling in the course of their work; medical and care professionals providing essential healthcare; seasonal agricultural workers who are able to isolate at their work location; and UK residents who ordinarily travel overseas at least once a week for work. If you are unsure whether some or all of your employees may be exempt from quarantine, we would be happy to advise you.
[UPDATE: Since this article was first published, the government issued further guidance on 30 July 2020 withdrawing the exemption from post-travel quarantine for medical and care professionals, to protect these sectors against outbreaks or peaks of COVID-19 occurring abroad].
Can we ask an employee not to observe quarantine and come into work?
No. The 14-day post-travel quarantine period is a legal requirement, introduced by The Health Protection (Coronavirus, International Travel) (England) Regulations 2020 or The Health Protection (Coronavirus, International Travel) (Scotland) Regulations 2020 If an eligible individual fails to self-isolate in breach of this requirement, they commit a criminal offence and will be liable to pay a fine. Therefore, you must not require an employee to attend the workplace during the quarantine period (or allow them to come into work when you know they should be in quarantine).
Of course, if the employee is able to perform their role from home they can be required to do so. If you need to provide them with additional equipment for home-working, this should be organised in a way that does not compromise their requirement to self-isolate.
Can we furlough an employee who is required to quarantine after travel?
Yes, it appears that this is possible, as long as the employee is eligible for furlough. In short, they must have previously have been furloughed for at least one period of three weeks or more, ending on or before 30 June 2020. Remember, that before you place an employee on furlough you must enter into a furlough agreement with them, especially if they will receive reduced pay.
There is now no minimum furlough period, so employers can furlough an employee for the 14-day post-travel quarantine period, and bring them back to work immediately after this if they remain well.
There has been some debate over whether using furlough in these circumstances is permitted by the Coronavirus Job Retention Scheme. Our view is yes; this falls within the scope of the rules. The third iteration of the government’s Treasury Direction states that the purpose of the scheme is:
“to continue the employment of employees in respect of whom the CJRS claim is made whose employment activities have been adversely affected by the coronavirus and coronavirus diseases or the measures taken to prevent or limit its further transmission”
This appears to capture a period of post-travel quarantine.
However, bear in mind that offering furlough to cover the post-travel quarantine period, may incentivise absence. Two week’s annual leave followed by two week’s furlough on 80% pay might be viewed as an attractive extended break by some employees. You may wish to consider confining the offer of furlough to staff who have been ‘caught out’ by the extended quarantine provisions (e.g. who are currently abroad or due to travel imminently).
Is an employee in post-travel quarantine entitled to statutory sick pay?
No, unless they or a member of their household are exhibiting symptoms of coronavirus. In those circumstances, the employee will be required to self-isolate under the government’s ‘ordinary’ infection control provisions and will be entitled to SSP.
However, if an employee is not symptomatic and is required to quarantine simply because they have recently returned from abroad, they are not ‘sick’ and are not ‘deemed’ to be sick by the relevant legislation governing sick pay. So, in those circumstances, SSP is not payable.
So what should an employee in post-travel quarantine be paid?
This remains at the employer’s discretion and, there are a number of options available. An employer can require or request an employee to:
- Work from home if possible and if the employee remains well. Employees who are working at home should be paid in full as normal to do so.
- Take a period of furlough; if the employee is in agreement and is eligible (see above).
- Take annual leave. Some employees may be happy to use paid holiday to cover post-travel quarantine. However, others will have insufficient holiday entitlement to do this or may wish to reserve some holiday for later in the year. You may be able to ‘force’ an employee to take annual leave if you wish, but it is important to check that your contracts of employment allow you to do this. You may need to give the employee a minimum amount of notice (usually twice the length of the proposed period of holiday). So, for example, if you want an employee to take the 14-day quarantine period as annual leave, it is likely that you will need to give at least 4 weeks’ notice.
- Take sick leave. Although an employee in post-travel quarantine is not entitled to SSP (see above), ACAS guidance states that: “an employer can choose to pay them SSP, or a higher rate of sick pay, if they want to”. This suggestion is somewhat confusing, as government advice makes clear that SSP is not payable in this situation, and reducing an employee to SSP when they are not sick, or legally ‘deemed’ to be sick, is highly unusual. ACAS may mean that employers can, at their discretion, pay employees a sum equivalent to SSP (rather than actually pay SSP) as an alternative to unpaid leave. If you are thinking of doing this, we would suggest that legal advice is sought first. Of course, an employee placed on full-rate sick pay during post-travel quarantine is unlikely to complain (unless they are close to exhausting their sick pay entitlement or need to reserve it for a planned sickness absence, such as surgery).
- Take a period of unpaid leave. Alternatively, you might wish to consider offering special paid leave in some circumstances (for example, if an employee has been forced to travel due to a bereavement or family emergency).
An employee has a holiday abroad coming up and will have to quarantine on their return. Can I instruct them not to go?
It is not currently clear how long post-travel quarantine measures will remain in place, and the application of the rules to specific destinations may change. So, it may not be necessary to instruct employees to cancel foreign travel on an ongoing basis.
However, in any event, it is unlikely to be reasonable to dictate to an employee what they are able to do during their non-working leisure time.
You may be able to cancel an employee’s pre-booked annual leave. However again, it is important to make sure that your contracts of employment allow you to do this, and you may need to give the employee a minimum amount of notice of the cancellation (usually the same amount of notice of the length of holiday to be cancelled). So, to cancel a two-week holiday, it is likely that you will need to give at least two weeks’ notice.
Of course however, cancelling an employee’s foreign travel is likely to cause considerable financial loss and disappointment to the individual. From an employee relations perspective, it would be preferable to focus wherever possible on agreeing a mutually acceptable arrangement to cover the post-travel quarantine period.
For further guidance on any employment or HR issues, contact our employment law solicitors.