Perhaps the most common measure adopted by governments worldwide over the past two years has been, quarantine.

As a result of such a forceful measure, millions of people at some point or another are forced to remain confined to their homes either due to a positive swab test result or due to their close contact with someone who tested positive for coronavirus.  This measure has left several consequent ripple effects especially on employers and employees.

With employees being restricted to their homes on a daily basis, the novel of “quarantine leave” was introduced.

According to Subsidiary Legislation 452.101, quarantine leave is “leave to be granted to the employee without loss of wages in such cases where the 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.”

Therefore, quarantine leave is not available to those who out of their own will decide to self-isolate but is only available to those who have received a formal letter by the authorities ordering them to quarantine. Additionally, the novelty of this concept is also remarked due to the fact that quarantine leave is not meant to serve as a replacement to paid vacation leave or sick leave, but is a new form of leave entitlement altogether.

Interesting are the interplays between sick leave and quarantine leave. If an individual tests positive for Covid-19, then that particular individual is to be considered as sick – therefore being entitled to sick leave from his/her employer. A similar system applies to individuals who although having initially tested negative for Covid-19, would have tested positive during their period of quarantine. When the illness terminates, if the person is ordered to remain in quarantine, then the quarantine leave regime will apply. Conclusively, only people who test negative for Covid-19 and are ordered by the Superintendent of Public Health or other authorities to remain in quarantine are eligible to avail themselves of quarantine leave, whereas those who test positive for Covid-19 avail themself of their sick leave entitlement.

The remarkable feature of this definition lies in the fact that whilst an employee is availing himself of quarantine leave, that employee has his mind at rest that he will not suffer any deduction in his wage.

The Maltese legislator has created a scenario wherein a person who tests negative for Covid-19 but is nonetheless ordered to quarantine, is afforded full protection of his wages. Yet, opposingly a person who is ordered to quarantine for testing positive for Covid-19, is not entitled to the same sort of protection.

The entitlement to sick leave is regulated under Regulation 3 of Subsidiary Legislation 452.101 which caters for a stipulated period available to an employee as sick leave for which the employee is entitled to receive his full wages. Therefore, if one considers a scenario wherein an employee avails himself of his full sick leave entitlement, and subsequently contracts Covid-19, the employee may find himself in a position wherein he does not qualify for quarantine leave and would have to avail himself of further sick leave which may result in loss of wages.

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The beneficial impacts of modern technology do not come as a hard nut to crack for they are easily recognised and generally accepted by society. What is often bypassed however, is the question of the price paid by the effects of technological advancements and whether these are dwindling the boundary between family life and work life at the expense of our well-being. This statement finds its own special footing within the ambit of employment since employees are seemingly only a few clicks away from their employer irrespective of whether it is the weekend, whether they are on holiday or whether it is 10pm and way out of their working hours.

The nature of the world of work continues to evolve with the growing use of smartphones, tablets, and laptops by employees. With synced work mailboxes into personal smartphones, the growing use of instant messaging, and now also through the heightened use of video conferencing portals and interactive meetings, the employee is barely given time to switch off from his working environment.

This reality is what has sparked debates between European Union Member States concerning the infamous right to disconnect. Apart from the remarkability of this right in its’ own merits, one should not disregard the fact that this Recommendation was pushed for by a Maltese Member of the European Parliament. Following the adoption of a parliamentary resolution on the 21^st of January 2021, recommendations have been made to the European Commission with the prospect of issuing a directive which will see the right to disconnect serve as a foundational right to all citizens of the European Union. The wording of the resolution highlighted the problem of being constantly connected along with the high demands of the workplace together with the rising expectation that workers are reachable at any point in time can negatively impact employee’s rights, and their physical and mental health and well-being.

There is a difference between working time, during which an employee must be at the disposal of the employer, and contacting an employee outside working time, where an employee has no obligation at all to be at the employer’s disposal. It can be drawn that the main purpose behind the introduction of the right to disconnect is aimed to safeguard the employee’s health with special focus on protecting employees from the psychological risks of anxiety, depression, burnout, and technostress.

The situation is not the same in all Member States. Under the current legislation and the case-law of the Court of Justice of the European Union, employees are not required to be available to the employer on a 24/7 basis and without interruption whatsoever. Notwithstanding, the right to disconnect is still absent from Union law, and the situation amongst Member States varies widely.

As proposed, the right to disconnect enables employees to refrain from engaging in any sort of work-related tasks, activities, and electronic communication including phone calls and emails, at any time falling outside of their working time. This right shall also extend to rest periods, vacation leave, maternity, paternity or parental leave as well as public holidays. With the protection of the right to disconnect, the employee will need not fear that he will face adverse consequences for having failed to respond to an email or answer a phone call whilst outside working time. As a matter of fact, the proposed law seeks to underline this particular point – that employers should not expect, let alone require workers to be directly or indirectly available or reachable outside their working time. This restriction shall also extend to co-workers who should likewise refrain from contacting their colleagues outside the agreed working hours for work-related purposes.

It must be pointed out that this law is at present still in its recommendation stage to the European Commission and as a result has no force of law within Member States of the European Union. It is only once the prospected directive is conclusively adopted by the European institutions that it finds its applicability within the local context. That said, the crux shall ultimately rest in the hands of the Maltese legislator to transpose the wording of the directive into Maltese law. Nonetheless, the introduction of the right to disconnect is a hopeful step towards restoring the boundary between family life and work life and it is set to greatly influence the current functioning of most workplaces.

The post The Right to Switch-Off – Its Implications on the Work Environment appeared first on Arthur Azzopardi & Associates.

As wonderful as the word ‘leave’ sounds, this is very important in the work and social life. The benefit of taking leave promotes good physical and mental health in the workplace and improves people’s work-life balance, which in turn boosts employees’ enthusiasm and productivity upon their return.

The Minimum Special Leave Entitlement Regulation lays down the minimum entitlement of sick leave, birth leave, bereavement leave, marriage leave, injury leave, and leave for jury services to whole-time employees. Recently, another form of leave entitlement was introduced by means of Legal Notice 62 of 2020 – the paid quarantine leave for all employees, payable by the employer.

What is an employee entitled for in terms of vacation leave?

With effect as from 1st January 2020, an employee working 40 hours per week is entitled to 216 hours of paid annual leave. This is calculated on a 40-hour working week, and an 8-hour working day. If the average normal hours (excluding overtime) calculated over a period of 17 weeks is below or exceeds 40 hours per week, the vacation leave entitlement in hours should be adjusted accordingly.

Interestingly, the employee has the possibility to take the leave in hours (rather than whole days) through mutual agreement with the employer. Nevertheless, if no agreement has been reached, the leave must be availed of as whole days.

Apart from vacation leave, what is the minimum special leave that an employee is entitled to?

In terms of article 4 of Legal Notice 62 of 2020, every employee is entitled for:

(a) one working day of bereavement leave;
(b) one working day of birth leave;
(c) two working days marriage leave;
(d) up to one year of injury leave;
(e) jury service leave for as long as necessary;
(f) quarantine leave for any period of quarantine as may be determined by the Superintendent of Public Health or by any other public authority

This being said, any collective agreement or private employment agreement can stipulate different annual leave rules so long as such agreements are more favourable to the employee.

What about sick leave?

The amount of sick leave varies substantially according to the relevant sector of industry. Where the sector is not covered by a Wages Council Wage Regulation Order, an employee is entitled to two working weeks of sick leave annually.

Additionally, the employer is only obliged to pay the amount of sick leave entitlement provided by law. If an employee remains sick after having exhausted all the sick leave entitlement, the employee will only continue to receive the sickness benefit from the Social Security to which the employee may be entitled.

What about quarantine leave?

After the Covid-19 pandemic, the Minimum Special Leave Entitlement was amended to introduce special paid quarantine leave to all employees. The employee is entitled to paid quarantine leave for any period of quarantine as may be determined by the Superintendent of Public Health. This type of leave is over and above any other leave and cannot be deducted from the employee’s annual leave or sick leave.

But how does the law define quarantine leave?

The law defines quarantine leave as,

“as leave to be granted to the employee without loss of wages in such cases where the 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 by any public authority under any other law.”.

Upon the return of the employee to work, the employer is entitled to request evidence from the employee ascertaining that the employee was obliged to abide by quarantine order.

But, who is legally obliged to abide by a quarantine order?

In terms of S.L. 465.13, any person arriving in Malta from any country other than those listed in sub-article (3) must submit himself to a fourteen (14) day period of quarantine immediately upon his arrival in Malta. At the time of writing, this list included Austria, Cyprus, Japan, Jordan, Romania, Portugal, Italy and Denmark. This order applies to persons who live in the same residence who is in mandatory quarantine.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Graziella Cricchiola on graziella@azzopardilegal.eu.

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