Legal Background (as at 7 July 2020)
The COVID-19 (Screening, Assessment and Isolation) (Jersey) Regulations 2020 require anyone who arrives in Jersey and has been in an infected area within 14 days preceding their arrival to self-isolate for 14 days in designated premises from the date they arrive. Where they are arriving or returning to a family home or shared accommodation with others who have not travelled, they should separate themselves from the rest of the household, where possible. This means sleeping in a different room, not sharing bathrooms or kitchen space (if this is not possible, guidance is to use a rota and ensure touch points are cleaned frequently and between uses), eating meals in isolated rooms and not socialising with other members of the household. Members of the household who have not travelled are not required to self-isolate and are permitted to leave the house so long as they continue to follow the latest public health guidance which includes continuing to practise social distancing when outside the home.
The person arriving may be granted permission not to self-isolate by (i) presenting evidence of a negative PCR (Polymerase Chain Reaction) COVID-19 test conducted within 72 hours before arrival in Jersey or (ii) under-going a PCR test on arrival in Jersey, in which case they will be advised to limit time spent away from their residence and limit social contact, including working from home and avoiding public transport and indoor gatherings where possible. Test results are expected within 48 hours.
Where a person returning to a family home or shared accommodation develops symptoms, the whole household must self-isolate.
The Emergency Powers (Coronavirus) (Bailiwick of Guernsey) Regulations 2020 require any person arriving in the Bailiwick by air or sea and who has left an infected area within the 14 day period immediately preceding the date of their arrival to self-isolate for 14 days. There is no testing regime and there are no statutory provisions in relation to shared accommodation and self-isolation. However, Public Health guidance says that the person arriving should self-isolate away from those in their household unless they have travelled together. If it is not possible to self-isolate away (which, in practical terms, will mean keeping apart from and not sharing facilities with others in the household, as for Jersey), then the whole household would need to self-isolate.
Guernsey is currently trialling a reduced 7 day self-isolation period followed by mandatory testing for anyone travelling to the Island between 5 and 10 July who wishes to participate. This may lead to a change in the self-isolation rules.
Can we stop our employee from travelling?
This will depend on the terms of the contract. If your contract allows you to refuse a holiday request on the grounds of business need, then possibly. Even then, you will need to be able to show that this particular employee has to be in the office doing this particular task at this particular time. If you do not have the contractual right to refuse holiday then no, you will not be able to stop your employee from travelling.
You may wish to draw your employees' attention to the UK Foreign Office website which continues to advise against all non- essential international travel except to certain countries and territories listed on the website, exempted since 4 July 2020.
When our employee returns from leave, can we require them to come back to work straightaway?
Yes, you can, provided the work is capable of being done from home. If the employee cannot work from home, you may wish to speak to them before they go on leave about your expectations when they get back, given that it is a criminal offence to breach the self-isolation period. Options may include a suitable temporary change in duties during the period of self-isolation - for example, it would be reasonable to ask a front-facing Receptionist with IT skills to do some electronic filing - or the conversation could be around the employee not being paid for those two weeks (see below).
If our employee cannot work from home during self-isolation, do we still have to pay them?
To be entitled to be paid, an employee has to be ‘ready, willing and able' to work. An employee in self-isolation following a trip abroad may be ready and willing to work, but if their normal job duties cannot be done from home and it is not feasible to give them any alternative work to do from home during self-isolation, then they will not actually be able to work. On that basis, you are fully entitled to stop paying them until they can work, although you will (as is always the case) have the discretion to continue paying them if the circumstances warrant it, for instance if the reason for taking leave was to visit a terminally ill relative or to attend a funeral.
If your employee becomes ill and cannot work during self-isolation, whether that is COVID related or as a result of any other debilitating illness, then you should put them on sick leave and your normal sickness policy and sick pay provisions will apply (bearing in mind that an employee with COVID symptoms will not have to produce a medical certificate).
Can we require our employee to take the period of self-isolation as holiday?
This question is only likely to arise where an employee cannot work from home following return from leave overseas. If your employment contract contains a provision which requires employees to take holiday at a time convenient for the business, you could rely on this to require your employee to take the period of self-isolation as holiday. However, insisting on them doing so is unlikely to go down well. If they have taken a long holiday (2 weeks or more), this extra two weeks is likely to exhaust their holiday entitlement; if they have taken a short holiday, they are likely (not unreasonably) to see the requirement as disproportionate. An alternative approach would be to suggest a ‘mix and match'. For example, you could agree a few days as holiday, a few as unpaid leave and, if there is any time that can be spent working from home on temporary tasks (however limited that might be), that time to be worked from home. If there is no provision in your contracts which allows you to require staff to take holiday at a particular time, it will again be a question of finding a workable solution (as above).
What if our employee lives in the same household as someone returning from abroad?
Where your employee is sharing premises with a person returning from an infected area and it is not possible for the household to separate from the returning traveller, your employee (together with all other household members) will have to self-isolate for the same period as the person returning. If the person returning is able to separate themselves, your employee will not have to self-isolate.
You may wish to consider introducing a temporary self-isolation policy or guideline which explains the position so that employees understand the situation and your approach. For example, you could adopt a general requirement that employees should notify HR if a member of their household is self-isolating and, if so, why they are self-isolating (eg due to illness, travel or to protect a member of their household) and the circumstances of their self-isolation, reserving the right to require an employee to stay away from the office and work from home, where possible, in appropriate circumstances. This policy / guideline should be kept under constant review to reflect updated government regulations and guidance as things develop.
In the specific context of travel-related self-isolation, any such policy / guideline should require an employee who has left an infected area and returned to the Bailiwick within the last 14 days to stay away and work from home where possible for the mandated self-isolation period.
Where the employee lives with a returning traveller, the position is:
» In Guernsey, if separation is possible, then Public Health guidance is that the employee can leave the house and attend work as normal. If separation is not possible, the whole household should self-isolate with the returning traveller;
» In Jersey, members of the household who have not travelled may leave the house and attend work as normal, but the whole household should self-isolate if the returning traveller develops coronavirus symptoms.
As separation will rely on stringent measures being adhered to in the relevant households and on employees being open and honest about their personal circumstances (which will not be verifiable), some employers may prefer to adopt a more cautious approach and require employees to stay away from the office and work from home where possible. If it is not possible for the employee to work from home in these circumstances, you should be prepared to pay them, given that they would be ready, willing and able to work.
Originally published 07 July, 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.