April, 2020 – Malta – Valletta Legal

1. Changes to the Law – The addition of Quarantine Leave

Following the Covid-19 outbreak, Government has published Legal Notice 62 of 2020; ‘Minimum Special Leave Entitlement (Amendment) Regulations, 2020’, adding a new definition of quarantine leave. By definition, an employer must grant quarantine leave if an employee is legally obliged to abide by a quarantine order as instructed by the Superintendent of Public Health under the Public Health Act.

This quarantine leave is to be granted without the employee suffering any loss of wages. At present, Legal Notice 63 of 2020 states that any person arriving in Malta from any country must submit himself to a fourteen (14) day period of quarantine, immediately upon arrival in Malta. However, such 14-day period may change according to instructions issued by the Superintendent of Public Health. Moreover, Legal Notice 78 of 2020 states that the Superintendent of Public Health may in her absolute discretion, order any person under quarantine, if such person came into contact with another diagnosed as suffering from Covid-19.

The law does not differentiate between work-related travel and travel for leisure. In this absence, it is understood that quarantine leave is to be granted regardless of whether the employee was on a personal trip, or on work trip.

The Government has announced that the Employer shall be paid €350 for each employee who cannot work due to Quarantine Leave. More information regarding this measure is expected to be announced in the near future.

2. Can an employer refuse to grant quarantine since it was “self-inflicted”?

No, at the time of writing, the law does not differentiate between work-related travels, and personal travels. The law also does not speak of “self-inflicted quarantine” due to “non-essential travel”. Therefore, the employer is legally bound to grant quarantine leave regardless of the reason for travel.

3. What happens if an employee contracts Covid-19?

If an employee contracts Covid-19, he or she is entitled to the statutory sick leave to which he or she is entitled ; no changes have been made to the law in this regard. However, that employee, just like any other person, is bound by law to be quarantined according to the instructions issued by the Superintendent of Public Health.

4. Can an employer reduce the working hours of an employee? What about employees already working on reduced hours?

As a general rule, an employer may not, unilaterally, alter the conditions of work as stipulated in the contract of employment. However, given the exceptional circumstances, an employer, in agreement with the employee or union representatives, may provide for different conditions of employment than those specified in the law, or contract. This is only so long as such agreement is a temporary measure to avoid redundancies, and as long as there is the approval of the Director of the DIER. Such approval needs to be reviewed every four weeks. This means that in order to avoid redundancies, the employer may reduce the working hours of the employees, from a 5-day week to a 4-day week. The important factors here are the presence of exceptional circumstances; the measures being temporary in order to avoid redundancies; and it is important that the measures are proportionate.

Conversely, for all intents and purposes, an employee on reduced hours is referred to in the law as a whole-time employee who in agreement with the employer works for less than the number of hours of work applicable in terms of the recognised conditions of employment to a whole-time employee. This is provided that this employment is the principal employment of the employee, in respect of which social security contributions are payable.

The law in its definition of ‘employee on reduced hours’ employs the phrase “a whole-time employee who in agreement with the employer”.  This implies that the reduction of working hours of an employee who is already working on reduced hours must be agreed upon by both parties: an employer may not unilaterally decide to reduce the employee’s hours further, or reduce the wage.

Therefore, no, an employer may not further reduce the working hours of an employee who is in a reduced hours agreement with the employer, unless there is mutual agreement from both parties.

5. How does forced leave work and is it the same as shut down?

Once again, we have a scenario where no amendments have been introduced in the light of the Covid-19 situation. Currently, the law provides that an employer who wants to imposed forced leave is to provide a written statement, within a reasonable time frame before the forced leave starts to run, in which he gives justified reasons for enforcing such forced leave on employees. This written statement must be delivered to the employees, as well as the Director of the DIER for his approval.

In the case where work is significantly reduced due to the pandemic, the Employer may avail himself of forced leave. Whilst this occurs, the annual leave entitlement  of an employee is depleted first, and afterwards this forced leave is unpaid.

Forced leave is not to be confused with shut down. Shut downs in respect of any calendar year must be communicated to the employee by the end of January of that year, and the employer may not utilise more than the equivalent in hours of 12 working days from the annual leave entitlement for shutdown. On the other hand, forced leave may exceed the total annual leave entitlement, and then transforms into unpaid leave.

Shut downs are regulated by regulation 3 (2) of S.L. 452.115, whereas forced leave is regulated by regulation 4A of the same subsidiary legislation.

6. Is telework imposed by law, and can it be availed of?

No. Currently, telework (or working from home), is not yet imposed by law in instances where this is possible. Hence, employees cannot refuse to come into work or insist on working from home. However, teleworking has been highly advised by Government and the Superintendent for Public Health in this current crisis.

Nonetheless, should the employer avail himself or herself of telework, the ‘Telework National Standing Order’ regulates remote working. Amongst others, the teleworker has the same rights as enjoyed by comparable employees working from the employer’s premises.  Telework may be required as a condition of employment in an employment contract, or if no such reference is made, it may be availed of upon agreement by mutual parties.

Presently, if telework is not required as a condition in the employment contract, and the employer makes such an offer, the employee is free to accept or refuse this offer. If the employee refuses, such refusal shall not constitute a good and sufficient cause for termination employment, and nor can it lead to a change in the conditions of the employment of the employee concerned. This also applies vice-versa; if an employee expresses the wish to opt for telework, the employer may accept or refuse such request.

Telework agreements must be in writing, and contain written information, including the location where telework is to be carried out, the provisions related to the equipment used for telework including its ownership, maintenance, liability and costs; the amount of working time to be spent at the place of telework and at the workplace; the schedule (where applicable); the description of the work to be performed; and to whom the teleworker is to report, reporting arrangements, and the like.

The employer is to respect the privacy of the teleworker. Monitoring systems shall only be put in place if this is agreed by both the employer and the teleworker, and is in writing. It must be proportionate.

7. Can employees be dismissed? How does redundancy work?

First and foremost, it is important to know that there must be a good and sufficient cause for dismissal, or else redundancy.

The employer has a great deal of responsibility, and cannot simply render employees redundant without just cause. Whilst the Courts have seen a lack of work, resulting in lower financial income, as just causes of redundancy, the employee still has a number of rights that the employer cannot simply ignore.

For instance, employees have the right to work their period of notice, according to law. Upon receiving notice of redundancy, the employee has the option to either work the notice period, or to not work it and request that the employer pays him or her a sum equal to half the wages that would be payable in respect of the unexpired period of notice. Alternatively, should the employer terminate with immediate effect, therefore not giving the employee the opportunity to work the period of notice, the employer is obliged to pay the employee the full wage which the employee would have been entitled to during the entire notice period.

Other matters to consider is that notice of termination cannot be given during maternity leave, no matter the reason for termination.

The employment of persons employed on a definite term contract, (as opposed to an indefinite contract), cannot be terminated by reason of redundancy. Employees working in terms of definite contracts of employment must either work the full term as stipulated in the contract, or else if the employer terminates the contract, the employee would be entitled to receive half the entire wages due for the remaining period.

Lastly, if the post(s) rendered redundant becomes available once more in the year immediately preceding the termination, the employer must firstly notify the former employees, who have the right of first refusal. If they accept, they cannot be re-engaged on lesser terms than they enjoyed before. Therefore, their conditions of work must be equal to those enjoyed before termination, or better. Moreover, employers must follow the ‘last in, first out’ rule. This means that, where an employer terminates the employment of an employee on grounds of redundancy, he or she must terminate the employment of that person who was engaged last in the class of employment affected by such redundancy.

8. Do I have a duty to report an employee/employer who is breaking quarantine?

As of yet, the duty to inform the Authorities of someone who is breaking quarantine is not legally imposed. However, Quarantine is legally imposed, and anyone found to be in breach is liable to a €3000 fine.

Moreover, the Government has issued a telephone number (2294 4504) and an email address (quarantine.covid19@gov.mt) in order to report any such breaches.

The information has been updated until 20^th March 2020.

The information provided in this article does not and is not intended as legal advice. Should you require specific advice, please do not hesitate to contact us on covid19@vallettalegal.com.