What are the employer and employee rights and duties when implementing teleworking arrangements?

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On Friday the 20th of March 2020, the Superintendent for Public Health of Malta announced that Malta had 11 new confirmed cases of coronavirus.

The eighth case”, as identified by the Superintendent, is an Indian man who lives and works in Malta and is part of a cluster of five individuals who worked together, and have all been confirmed as infected with the virus due to their contact at their place of work. 

 With such a clear example of contagion at the workplace, authorities are rightly recommending that those who can work from home, should do so, and are calling upon employers to make the necessary arrangements to enable their employees to work from home in order to hinder the spread of the virus in Malta.

 The government has also launched a package of incentives to support employers during these times of crisis, including refunding part of the costs involved in setting up systems and equipment which enables employees to work remotely (“teleworking”).

 

What guidance does the law offer when implementing teleworking arrangements?

For starters, employers should refer to the Telework National Standard Order (Subsidiary Legislation 452.104) and put a Teleworking Policy in place, if they do not already have one.

Although some employers may already have a Teleworking Policy in place, they should review it to ensure it caters for the extraordinary circumstances we are living in as a result of the corona virus pandemic, and ensure it is relevant to the reality they and their employees are living.

Next, employees should be made aware of any new or amended Teleworking Policy, and some form of acknowledgement and acceptance of the Policy should be sought from employees.

If any new conditions are intended to be introduced to the employment conditions, such should be covered by a written agreement signed by both the employer and the employee, usually in the form of an addendum to the employment agreement.

Employers should take advantage of the government’s incentive to refund part of the costs (incurred between 1st March 2020 and 30th March 2020) in order to organise their staff to telework. This is one of a number of incentives which the government has announced in order to relieve some of the financial pressures which will be impacting businesses in Malta.  

  

What about quarantine leave? Is this on full wages?

As from 13 March 2020, if an employee is in quarantine to comply with an order by the authorities, such as after returning from travel abroad, such quarantine is to be considered as “special leave” (on par with “marriage leave” or “bereavement leave”) without loss of wages. Employers could be eligible for government subsidy of employee wages during such special (quarantine) leave, as a result of the aid package announced by the government earlier this week. 

If an employee is on quarantine leave but can telework, the employee will be paid normal wages and would not be entitled to quarantine leave.

If an employee chooses to self-quarantine (perhaps out of health concerns for himself or his family), such employee is not entitled to quarantine leave, and would have to apply for and obtain leave from his employer.

 What if an employee chooses to travel abroad of his own free will?

Similarly to a Teleworking Policy, a Travel Policy by an employer (very few of which conceived of limiting travel in the instance of a pandemic and which would therefore need to be amended) becomes vital in regulating a myriad of scenarios and circumstances which might crop up and which the law does not address directly.

 For instance, if an employee chooses to travel abroad knowing that on his return, he will have to be in quarantine for a period of two weeks, an employer may feel aggrieved at having to pay such an employee quarantine leave following non-essential travel. This is perfectly understandable, considered the disruption to business and the loss of earnings which would be weighing heavily on the employer’s shoulders, but the employer would be breaking the law if he refused quarantine leave.

 The law is unequivocal about the fact that the employer would have to pay quarantine leave to any employee complying with a quarantine order.

 On the other hand, if the employer had already rolled out a Travel Policy that prohibited non-essential travel unless it was pre-approved by the employer, the employee would be in breach of such Policy and exposed to disciplinary action.   

As the situation and regulation of businesses during the pandemic is very fluid, laws and interpretations may change from day to day; it is therefore advisable to seek professional advice, and ask to be updated when there are any changes, in order to never fall foul of any legal obligation.

 Dr Davinia Cutajar  

Advocate

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