With temperatures akin to Spain in the UK over the summer break and easing restrictions, the impact of the ongoing pandemic can at times be forgotten. However, as businesses reach the end of the summer holiday season, the effects of the pandemic on staffing levels through absence and due to self-isolation are still keenly felt. This, coupled with employees’ large unused annual leave reserves mean that employers have many challenges to face, as well as continuing to operate in the most challenging of economic environments.
How can employers manage these challenges? We consider some of the most common COVID-19 related annual leave issues, and how to lessen their impact on business.
Whether through the endemic track and trace alerts, coined as the “Pingdemic”, or through a positive test, many employees who are on annual leave might be away for longer than they or their employer bargained for.
If an employee receives a notification requiring them to self-isolate when they cannot work from home, develop symptoms or test positive for COVID-19, they will be entitled to Statutory Sick Pay (SSP) for the period of their absence. In addition to this, the SSP regulations were amended on 16 April 2020 by the Statutory Sick Pay (Coronavirus) (Suspension of waiting days and general amendment) (No.2) Regulations 2020. These changes mean that SSP becomes payable from the first day of any absence.
However as homeworking remains the default in Scotland for the time being, this can be a way for both employees and employers to avoid lengthy absences and SSP. If an employee can work from home for any period of self-isolation, they should do so and continue to be paid their usual salary.
Employers should therefore have plans in place for remote working where possible, and be mindful of holiday periods where the chances of being told to self-isolate or contracting COVID-19 may increase.
Employees self-quarantining upon return from a red or amber list country
As well as this, with the re-opening of foreign travel, many employees may be caught by changing quarantine rules with destinations being added to or removed from the “green” list, or heading off to a country that requires quarantine on arrival or return.
Whilst the changing status of a country may be unavoidable, employees should be made aware of their employer’s approach to foreign travel. Employees are not in all circumstances entitled to SSP if they are quarantining after travel abroad. The SSP rules only enable claims if it is known or reasonably suspected that someone has been in contact with a case of, a relevant infection or contamination. The fact that someone has returned from travelling does not necessarily mean that there is a reasonable suspicion of contact with someone who is infected with COVID-19, unlike with self-isolation alerts through track and trace. An employer may choose to pay company sick pay at the same rate of SSP or higher subject to their own scheme, but employees should not expect to be entitled to SSP or payment in this instance. Another option an employer has is to agree the quarantine period as unpaid leave, or to for the absence to be taken from the employee’s annual leave entitlement.
Employers cannot stop someone from travelling to somewhere where they have to quarantine, but they can make clear what the consequences would be of someone travelling and having an extended unauthorised absence against management expectations. Letting employees know the pay policy for quarantining, whether there are any home working arrangements, and assessing any request for leave over 10 days in length on a case by case basis are ways of managing this and setting expectations. Employers should have in place plans how they will manage an employee having to quarantine at short notice, due to the nature of travel at the moment.
Unused annual leave and carryover
Despite the easing of restrictions and the greater ability to use annual leave, many employees still have substantial accrued leave entitlements.
One way of managing this is to encourage employees to spread their leave entitlement throughout the year. Failing this, an employer also has the ability under the Working Time Regulations 1998 to give notice ordering a worker to take statutory holiday on specified dates. The notice required for this is at least twice the length of the period of leave that the worker is being ordered to take. Whilst this may be less popular in terms of employee relations, using it helps to avoid the issue of accruals of unused leave, the question of carrying it over and assists to mitigate the possibility of employee burnout.
This is particularly important following the change in March 2020 made by the Working Time (Coronavirus) (Amendment) Regulations 2020. These regulations update the Working Time Regulations 1998 to allow for the four weeks of EU derived leave to be carried over for up to two years: "where in any leave year it was not reasonably practicable for a worker to take some or all of the leave to which the worker was entitled under this regulation as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society)".
This is to account for periods where an employee was:
- self-isolating and unable to take leave before the end of the leave year;
- required to work during an exceptionally busy period and was not able to take leave;
- on furlough at the start of the pandemic where it was not practicable to take leave at that time; or
- another reason due to the effects of the coronavirus that meant that the worker was not able to take their annual leave entitlement.
The scope of this is quite wide and does mean that many employees may have substantial entitlements to unused leave which have carried over into this year. Being aware of the entitlements of employees, along with encouragement to take leave and mandating leave be taken if necessary are ways of keeping on top of staffing levels during the recovery from the pandemic.
Despite the new challenges employers face on annual leave as a result of COVID-19, many can be greatly alleviated by good planning and communication. If employers are unsure of the law on annual leave, or how to deal with a specific situation they should take advice at an early stage to avoid issues or legal challenges later.
How can we help?
For more information on returning to work post-pandemic keep up to date with our “returning to the office” series, or for specific advice contact our specialist Employment law team.