Debbie Fellows: Spain quarantine rules and employment law
Debbie Fellows urges employers and staff to come to an arrangement on how to treat a period of quarantine for employment and pay purposes.
Quarantine following travel from Spain and other countries not featured on the Scottish government’s list of exemptions is a legal requirement and employees will be liable to a criminal fine if they do not comply.
From an employment perspective, this announcement will disrupt many people’s annual leave plans, particularly those who are already in Spain or due to travel in the coming weeks. While time off work may have been arranged for the duration of a holiday, it most likely won’t have taken into account the need to quarantine for two weeks on return.
As quarantine is a legal requirement, it is important that employers do not try to force or allow employees who are required to self-isolate to attend work or leave their house during the 14 day period.
This self-isolation is a public health measure so it is advisable for employers to treat the situation sympathetically. It is also important that employees tell their employers if they are required to self-isolate to ensure alternative arrangements can be made.
Where possible, employers should consider arranging for employees to work from home so they can continue working during quarantine. Employees who are fit to work during self-isolation are not prevented from doing so, provided they do not leave their house. However, for those who cannot work from home, employers will need to decide how to deal with the 14 day period. There are a few issues I’d urge employers to consider.
The UK government website on Statutory Sick Pay (SSP) states clearly that employees cannot get SSP if they’re self-isolating after entering or returning to the UK and do not need to self-isolate for any other reason. SSP during self-isolation has only been extended where self-isolation is required for a limited set of circumstances e.g. where an employee is required to shield by the NHS or is living with someone with coronavirus symptoms. Unless the government update its position and extend SSP further, employers would be acting contrary to the current government guidance by treating any period of self-isolation following travel abroad as sick leave.
Employers can consider using annual leave to cover any period of quarantine, but they should consider the individual’s circumstances to determine if this option is appropriate, and act in line with the relevant contract of employment. The first consideration is whether the employee actually has enough annual leave to cover two weeks of quarantine. The second is whether the employee wants to use a significant portion of their annual leave on two weeks of quarantine.
Authorised leave, paid or unpaid
In addition to using annual leave, another option is for employers and employees to agree that the two-week quarantine (or a portion of it) will be treated as a period of exceptional, authorised leave. For staff who have not yet gone on holiday, it would be advisable to discuss this with their employer before they travel, to ensure authorisation for any exceptional leave is in place before departure. For employers, when deciding whether to grant any such period of authorised leave, it is important to bear in mind the exceptional circumstances at hand. Requests for authorised leave should be treated in a reasonable and sympathetic manner, bearing in mind that quarantine is a mandatory legal requirement and travel plans may have been in place before this was announced. Unreasonably refusing authorised leave for a period of government-mandated self-isolation may not be looked upon favourably if the employee were to raise a formal complaint down the line.
In terms of whether such leave should be paid, if there is no provision for paid, exceptional leave in the contract of employment, it would be up to the employer to decide whether to provide pay on a discretionary basis. If the employee has no contractual right to be paid in such circumstances, there would be no obligation on the employer to pay during quarantine if the employee simply cannot work.
Where an employee takes a leave of absence without authorisation. This is an option, though it raises the question of whether the unauthorised leave could merit disciplinary action. As above, it would be advisable for employers and employees to come to an agreement with one another rather than going down this route.
For staff who had already travelled to Spain before the announcement was made, it would likely be unreasonable to treat any period of self-isolation as a disciplinary matter. This could encourage staff to attempt to travel to work in breach of the rules, which is not in keeping with the objectives of the government’s plan and could endanger the health and safety of colleagues and customers alike. For those who have not yet gone on holiday but have plans to do so, arrangements should be discussed with the employer before travelling.
Debbie Fellows is a partner at Thorntons