The government published its COVID-19 “Green List” of countries in respect of which persons are not required to restrict movements for 14 days upon entry (or return) to Ireland. Although official advice remains that the safest thing to do is not to travel abroad, publication of this list may mean more employees will now travel abroad. Given the heightened risk that foreign travel poses to workplaces, and employers’ responsibilities under the Return to Work Safely Protocol, employers may attempt to restrict annual leave or insist upon further leave being taken before returning to the workplace. 

We set out below some of the more common queries our employer clients are asking us, together with our current advice:

Does an employee need to notify their employer if they are travelling, or have recently travelled, abroad on personal time?

Generally, no, unless the employer requires the employee to make such notification.  In ordinary times employers usually would not require details of an employee’s annual leave plans.  Privacy is expected.  However, given COVID-19 restrictions and a potential inability for self-isolation remote working, some employers may need to ask employees to confirm foreign travel plans. 

Even where employees have returned to work and completed their ‘return to work’ form, most employers’ return to work forms stipulate that if the employee’s personal circumstances change, they should notify management. Many employers are now temporarily amending their annual leave policies to require employee notification of planned foreign travel, due to risks of bringing COVID-19 into workplaces.  Employers can use that information to discuss next-steps for employees and to help with contact-tracing.

Can an employer refuse to grant annual leave where an employee is travelling abroad?

Employers generally cannot refuse an annual leave request simply because an employee is going abroad on holiday. However, as current government advice is not to travel abroad, the overriding requirement for the employer to keep the workplace safe may impact on returning employees.  Although not encouraged, employees planning ‘Green List’ holidays are likely unaffected as they can return to work as normal immediately on their return.  For those planning ‘non-Green List’ holidays, while the annual leave itself may not be refused, working location and/or pay may be affected.  

What are an employee’s pay entitlements during a period of restricted movement imposed following travelling abroad? 

Government advice is that a 14-day period of self-isolation is required on return from a ‘non-Green List’ country. The employee cannot enter the workplace but if the employee can work remotely, the employer may allow this and pay the employee as normal. However, where employees required to self-isolate cannot work remotely employers will typically be reluctant to pay employees who have effectively ‘brought this upon themselves’.  This is particularly the case where the employer has warned employees in advance that self-isolation upon return from a ‘non-Green List’ country will not be paid.  In most cases, this period of restricted movement would also not qualify an employee for the COVID-19 Enhanced Illness Benefit payment or any sick pay entitlements offered by employers.

Last month for example, the Department of Public Expenditure and Reform issued guidance to all civil and public service employees stating that additional annual leave or pre-approved unpaid leave would be required for the 14-day period of restricted movement upon return from non-essential travel.

Employers must therefore consider whether to:

• continue paying the employee a normal salary, even where they cannot be accommodated to work from home.  Many employers, especially those struggling financially, will not entertain this;
• allow voluntary annual leave to cover the self-isolation period.  This might result in an employee being absent for one month however (2 weeks’ annual leave for example followed by 2 weeks’ self-isolation) which may not be palatable for employers; or
• impose or allow a period of unpaid leave (but again this will result in a long period of absence from the office). 

The most suitable option is dependent on the specific leave polices, the objective business needs and the risks identified in risk assessments by the employer.  Of crucial importance however is that employees are made aware in advance of the potential repercussions for foreign travel that goes against public health advice, and where necessary that employers update their policies to cover this. 

With fortnightly reviews of the “Green List”, how does this affect employees who have travelled to countries removed from the list?

The “Green List” is subject to a fortnightly review and employers and employees need to consider the implications of this in the workplace e.g. if a 14-day restricted period is imposed on persons returning from countries no longer present on the “Green List”, which will prevent employees returning to the physical workplace.  Where the employee can work remotely an employer may not have an issue with this, but where an employee cannot work remotely the employer should make clear in advance of the employee leaving that any change to the “Green List” is at the employee’s own risk.  The basis for this is that the Government’s advice is that foreign travel is still not encouraged despite the “Green List” being published.  

Key takeaways for employers

Employers should decide upon their approach to foreign personal travel and potential self-isolation on return:  does the employer wish to be informed in advance of foreign personal travel?; is the employer happy to allow an employee to work remotely for 14 days?; if remote working is not possible, how will the employee’s “pay” be dealt with? It is important that the annual leave policy is amended or that such approach is referred to in employers’ COVID-19 Response Plans, and that this is clearly communicated to all employees. 

If you would like any advice on any of these issues, please contact Jeffrey Greene, Ailbhe Dennehy or your usual William Fry contact.

Contributed by Ciarán O’Brien, Darran Brennan