Fluctuations in infection rates in other countries have resulted in short-notice changes to the countries included within the 'travel corridor' exemptions from quarantine requirements. How can employers minimise disruption?
Practicalities
Any employee travelling into England from a non-exempt country is required to self-isolate for a period of 14 days (unless an exempt worker). From 15 December 2020, passengers arriving in England may pay for a private Covid-19 (Coronavirus) test after five days of self-isolation. If the test is negative, they will be permitted early release from quarantine.
Employees must not be encouraged or permitted by employers to attend work during quarantine, which would be a criminal offence. Subject to agreement with their employer, during that period employees may: work from home, if able to, take additional paid holiday leave, take unpaid leave or take special paid leave.
Furloughing an employee during a period of self-isolation following leave is suggested as an option in current Acas guidance. However, this is arguably precluded by the most recent version of the government guidance on the Extended Coronavirus Job Retention Scheme, which states that short term illness/self-isolation should not be a consideration in deciding whether to furlough an employee.
The rules and guidance are frequently updated so employers should always check the latest versions, and should monitor changes to exempt countries on an ongoing basis.
Pay
Entitlement to statutory sick pay – or the £500 coronavirus low-income self-isolation support payment – has not been extended to cover quarantine following travel.
Employers are not required to pay employees for the quarantine period unless they are able to work from home or use paid holiday leave. They may choose to grant special paid leave or pay sick pay. This could be restricted to defined circumstances, such as where a travel corridor exemption is removed unexpectedly during travel.
Discipline
There are evident risks in disciplining employees for unauthorised absence due to compliance with quarantine requirements. Dismissals could be found unfair; even less severe sanctions could result in constructive unfair dismissal claims.
Disciplinary measures should be approached with caution, taking all circumstances into account. An employee who had to travel abroad due to a family emergency would clearly merit different treatment from another who chose to book a holiday in a non-exempt destination.
Importantly, a formal sanction imposed due to a breach of a properly communicated policy, addressing employer expectations and the potential consequences of employee travel plans, is more likely to be justifiable.
Policies
Clear policies should be introduced, such as addressing which employees would be permitted to work from home if required to quarantine, arrangements for requests for additional paid holiday leave or special leave to cover a quarantine period, and when this may be permitted, requirements for employees to notify any planned travel outside England so that contingency arrangements can be put in place.
There should also be considerations of a test after seven days is introduced and it should be considered whether this would be funded by the employee or employer. Circumstances in which leave may be cancelled by the employer, (subject to contractual/existing policy terms – the usual position requires employers to give notice of at least the length of the leave) and whether expenses would be reimbursed.
Alice Meredith is a barrister at 5 Essex Court.
