COVID-19 is disrupting our lives, in both the personal and working sphere. It is presenting an unprecedented challenge to businesses who undoubtedly need to react in light of their specific industries and difficulties. This generic FAQ sheet is aimed to address the basic and most common queries which every employer might face.
What is Quarantine Leave? Is this over and above the Vacation Leave and/or Sick Leave entitlement?
The Minimum Special Leave Entitlement Regulations (S.L. 452.101) have been emended to cater for a new paid leave – quarantine leave for all employees, payable by the employer. Quarantine leave applies to all employees in the private sector, including those who are governed by a Work Regulation Order (WRO).
Quarantine leave is defined as “leave to be granted to the employee without loss of wages in such cases where an employee is legally obliged to abide by a quarantine order confining the employee to a certain area or to certain premises as determined by the Superintendent of Public Health under the Public Health Act or by any public authority under any other law.”
Employees who test positive to COVID-19 – are they entitled to quarantine leave?
A person who tests positive for COVID-19 must “submit himself to self-isolation”. This is enforceable by law and also applies to persons who live in the same residence. Failure to do so will result in hefty fines of ten thousand Euro (€10,000) for each breach. Furthermore, the law does not provide that a person in the same residence as a person testing positive with COVID-19 is entitled to special quarantine leave, however potentially such individuals would fall within the scope of L.N 78 of 2020 and would therefore be entitled to special quarantine leave.
A person who tests positive for COVID-19 is likely to be certified as sick, and hence entitled to paid sick leave by the employer, and also likely to be entitled to sickness benefit. Therefore, it would appear that special quarantine leave would not apply in this case.
How long will an employee be entitled to quarantine leave?
For any period of quarantine as may be determined by the Superintendent of Public Health.
What are the initial reactions/solutions which an employer can propose to the employees for a temporary measure to address the current situation?
The most common measures being utilized by employers include the utilization of vacation leave.
Can an employer enforce forced leave on employees?
An employer may resort to forced leave, yes. This can be adopted as long as the employer furnishes the employees with a written justification explaining why the forced leave is applying. It is important that this written statement is given to the employees before the term of forced leave starts running.
Can an employer change the conditions of work of the employees?
In cases where the current situation has adversely effected the employer’s undertaking, an employer may elect for the exceptional application of Article 42 of Chapter 452 of the laws of Malta. Following a written approval from the employees, the employer, may resort to the request an exceptional permission of the Director of DIER to temporarily change the applicable conditions of work of his employees. This measure is only a temporary measure for the survival of the business in question. In order for permission to change working conditions of employees, the Director of the Department of Industrial and Employment Relations (DIER) shall be convinced, that the measure undertaken is a means to avoid redundancies within the employer’s operations. In adopting this exceptional process, the employer shall ensure that the employees have the right to exercise the right to information and consultation.
Can an employer change the conditions of work in just one area of its operations?
More often that not, a business is affected adversely in only parts of its operation. Therefore, the employer will be addressing only that area. An employer shall request for the reduction of hours of work in that specific area of its operation.
When changing the conditions of work, can an employer switch a full-time employment contract to a part-time employment contract?
No, this is not permitted. A full-time basis cannot be changed into a part-time contract.
When changing the conditions of work, can an employer reduce an employee’s pay per hour?
No, this is not permissible. An employer may reduce the hours of work as an exceptional measure to avoid redundancies, however, the pay per hour cannot be effected.
When reducing hours of work, how will the salary of each employee be calculated?
Salary shall be calculated pro-rata the hours of work. Therefore, if an employee’s salary on a forty-hour (40) week is sixteen thousand Euro (€16,000) per annum (gross), an employee whose hours of work have reduced to thirty-six (36) hours per week under this exceptional permission granted by the Director of DIER, the gross annual salary for that temporary period shall be fourteen thousand and four hundred Euro (€14,400).
How long can an employer sustain such conditions of employment?
This is only a temporary measure sought and applied to avoid redundancies. The Director of DIER’s review shall be sought every four (4) weeks. Every four (4) weeks, the Director of DIER will analyze whether this measure is still necessary.
Can an employer still terminate a contract of employment during probation without assigning a reason?
Yes, the right for any party (employer and employee) to terminate the contract of employment during probation without assigning a reason for termination still stands, and it is in no way effected by the current measures put in place.
In which cases can an employer resort to redundancies?
As a norm, redundancies are resorted to in cases where:
- a business is restructuring, and specific role/roles are not relevant to the business in view of this restructuring, or
- in cases, where the business is undergoing financial difficulties. Strictly speaking, termination of a contract by virtue of redundancies is resorted to when there are no other viable or possible options.
How will an employer classify who shall be made redundant and who shall not be made redundant?
The last in, first out rule applies in the event of redundancies. An employer shall discharge the person who was engaged last in his/her class of employment. ‘Class’ shall refer to the groups or categories listed in a collective agreement. Provided that where there is no collective agreement or where a collective agreement does not stipulate groups or categories of employees, it shall refer to the work performed or expected to be performed independently of the title or name given to the post.
Are there any specific obligations on the employer post redundancy of an employment post?
Yes, the employer is under a legal obligation to re-engage an employee, whose post was previously terminated on the basis of redundancy, if the post formerly occupied by the redundant employee becomes available within a period of one (1) year from the date of termination.
Does the employer still have to pay the employee notice if made redundant?
Yes, the statutory obligations of termination of a contract of employment will be applicable in cases of termination of an employment contract through redundancy. Therefore, the employee can either be given the opportunity to work the notice period, or if this is not possible (due to business closure), the employer shall pay the notice period together with any applicable accrued vacation leave to the employee.
Should you require any assistance with any employment matters, please contact CSB Group at [email protected].
