COVID-19: How should employers deal with post-holiday quarantine?
Since 17 May 2021, red, amber and green list rules have applied when individuals enter England from overseas. These rules impose three levels of quarantine obligations depending on the country an employee has visited.
However, the Government’s recent decision to move Portugal from the green list to the amber list, leaving some employees who had been on holiday in an unexpected 10 day isolation period on their return, has brought quarantine issues into sharp focus for employers. Should employees be paid during a period of quarantine? How should quarantine be managed? Do employers need a quarantine policy? With summer holiday season upon us and employees likely to want to travel abroad when they can, employers will need to carefully consider these questions.
What pay are employees entitled to during quarantine?
Where an employee who has to quarantine can work from home, they should continue to be paid as normal.
Where an employee cannot work from home during quarantine, the situation is less clear. Arguably, an employee in that situation is unable to work and therefore the implied right to be paid would not apply. However, case law (predating the Covid-19 pandemic) suggests that where an employee is ready and willing to work, but the inability to work is the result of a third-party decision or external constraint, failure to pay an employee’s salary may be unlawful. Conversely, if an employee knowingly books an overseas holiday knowing that they will need to quarantine on their return, they may find it harder to argue that their inability to work has been caused by a third-party decision or external constraint.
Employees under quarantine and not being paid may seek to argue that they are entitled to statutory sick pay (“SSP”). Entitlement to SSP in this context is complicated and is likely to be fact specific. We would urge you to take advice if this is an issue.
Do you need a quarantine policy?
Employers will need to stay abreast of the quarantine rules and ensure that all staff follow the relevant Government guidance. They will also need a clear plan to deal with quarantine periods and this will need to be clearly communicated to staff. You may wish to introduce a formal quarantine policy. Any such policy is likely to need to:
- Refer to Government guidance and stress that quarantine rules must be followed;
- Require employees to work from home during a quarantine period where this is possible;
- Explain what will be required if employees cannot work from home during quarantine, for example, a further period of holiday, a different type of paid leave, unpaid leave or a period of furlough;
- Explain what pay will be available during quarantine; and
- Deal with different approaches, such as in relation to pay, for staff who knowingly book a trip to, for example, an amber list country.
This update is for general purposes and guidance only and does not constitute legal or professional advice. You should seek legal advice before relying on its content. This update relates to the prevailing circumstances at the date of its original publication and may not have been updated to reflect subsequent developments. If you have general queries about our updates, please email: firstname.lastname@example.org