Member Article

With the summer holidays upon us, what are the implications for employers managing holiday requests and the ever-changing guidance on foreign travel? We consider how to deal with employees who travel internationally and the current isolation rules.

What are the rules?

Whilst for most of this year non-essential international travel was prohibited, now that the Government has lifted Coronavirus restrictions within England as part of the roadmap out of lockdown, international travel is possible again albeit with certain limitations. To facilitate this the Government has introduced a traffic light system which categorises countries as red, amber, (amber plus) or green based on:

• The percentage of their population vaccinated;
• The rate of infection;
• The prevalence of COVID-19 variants of concern; and
• The country’s access to reliable scientific data and genomic sequencing.
  
  

Red list

The Government’s advice remains that individuals should not travel to a red list country. If an individual has been in a country or territory on the red list in the last 10 days they will only be allowed to enter England if they are a British or Irish National or have residence rights in England. Before returning to England, individuals are required to take and provide proof of a negative COVID-19 PCR test, book a quarantine hotel package (currently £1,750) and complete a passenger locator form prior to arrival and provide a further two negative COVID-19 PCR tests following their arrival into England on or before days 2 and 8 (which need to be booked prior to arrival in England). For the avoidance of doubt, the Government guidance is that the day the individual arrives in England is considered as day 0.

Amber list

If individuals travel to an amber list country on their return to England, they must take and provide proof of a negative COVID-19 PCR test, complete a passenger locator form prior to arrival and quarantine at their home or the place they are staying on their return for 10 days. During this time individuals will also be required to provide two further negative COVID-19 PCR tests on or before days 2 and 8 (which need to be booked prior to arrival in England). 

Individuals travelling to England from an Amber list country are eligible to take part in the Government’s test to release scheme. In order to take part in the test to release scheme individuals must book a private COVID-19 PCR test prior to arrival in England and provide the details of this on their passenger locator form. This additional private COVID-19 test is then taken on day 5 of quarantine. Provided the individual’s day 2 test and day 5 test are negative, they will be able to end their period of quarantine following receipt of the results of the day 5 test. Individuals who take part in the test to release scheme are still required to take a COVID-19 PCR test on day 8 (unless of course the day 5 test is positive). If the day 5 test is positive the individual will need to quarantine for a further 10 days starting from the day after they took the day 5 test or when they first had symptoms, whichever is earlier.

If the individual is fully vaccinated (at least 14 days prior to arrival in England and the vaccination was received in the UK (or USA or the EU from 2 August 2021)) they will not need to quarantine or take a day 8 test on arrival in England (unless they have been in France in the 10 days prior to arrival – the normal rules apply, this is referred to as Amber plus). For the avoidance of doubt, following arrival in England the individual will need to take the day 2 COVID-19 PCR test on or before day 2 - there will be no need to quarantine unless the test is positive or if NHS Test & Trace informs the individual that they have travelled to England with someone who has tested positive for COVID-19.

Green list

For individuals traveling to England from countries on the green list they must take and provide proof of a negative COVID-19 PCR test, book and pay for a day 2 COVID-19 PCR test and complete a passenger locator form prior to arrival. Following arrival in England the individual will need to take the day 2 COVID-19 PCR test on or before day 2 - there will be no need to quarantine unless the test is positive or if NHS Test & Trace informs the individual that they have travelled to England with someone who has tested positive for COVID-19.

Exempt professions/roles

Some professions/roles are exempt from some or all of the above travel restrictions, quarantine requirements and testing requirements depending on the profession/role. These professions/roles include but are not limited to aircraft pilots and crew, offshore oil and gas and specialist technical workers. The Government website contains a full list and detailed guidance on entry requirements for individuals from exempt professions/roles.

There are also exemptions for medical or compassionate reasons which is detailed further in Government guidance.

Employers obligations

As we saw last summer and already to some extent this summer with the sudden changes in classification introduced for Portugal and other popular holiday destinations – a country’s traffic light classification (and therefore the requirement to quarantine or not) can change very quickly. We would therefore recommend as part of ongoing communications with employees setting out what your businesses position will be in all scenarios so that employees are aware prior to booking/going on holiday – this will be especially useful where there are last minute changes in a country’s categorisation requiring the employee to quarantine on their return where they previously would not have been required too.

For most employees who are able to work from home the requirement to quarantine upon arrival in England does not impact their ability to work and therefore often does not present a problem for employers. Where employees can work from home during a period of quarantine, they should continue to receive their usual salary.

However, where employees are unable to work from home and are required to quarantine as a result of international travel this can cause a headache for employers. In terms of pay there are a number of options and the approach adopted will be down to what fits the business both financially and from an employee relations perspective:

• Employers could require employees to take annual leave to cover some or all of the period in which they are required to quarantine.
  
  Agreement should be sought from the employee that they will take annual leave during some or all of the period in which they are required to quarantine. To the extent, agreement cannot be reached it may be difficult for employers to force employees to do this due to Regulation 15 of the Working Time Regulations 1998 requiring double the amount of notice to be provided (therefore a 10 day period of quarantine would require 20 days’ notice to be provided).

• Employers could require employees to take some or all of the period in which they are required to quarantine as unpaid leave.
  
  This option may be attractive to some employees who do not wish to use any more of their holiday entitlement/are not worried about the financial consequences of taking a period of unpaid leave. Furthermore, to the extent this approach is adopted it may act as a deterrent to employees booking holidays abroad in the first place.

• Employers could place employees on a form of special paid leave during some or all of the period in which employees are required to quarantine.
  
  Whilst this is an option (one adopted by many employers in 2010 when employees were stranded abroad as a result of the Icelandic ash cloud) we are not aware of any employers who have taken this approach in relation dealing with periods of quarantine.

• A combination of some or all of the above.
  
  

What was the reason for the travel?

When deciding which approach to take for employees who are unable to work from home during quarantine employers may decide to take a different approach where for example, an employee has travelled for business purposes and is required to quarantine upon their return as a result.

How to deal with employees who fail to quarantine in line with government guidance following travel to an amber or red list country

Where an employee has returned to work following travel to an amber or red list country and has therefore failed to quarantine in line with government guidance this presents a number of issues for employers including potential business interruption (if there is a COVID-19 outbreak) and health and safety – putting aside any criminal sanctions the employee might face.

Whilst disciplinary policies are unlikely to state that returning to work in breach of a requirement to quarantine in line with government guidance is a disciplinary offence it is likely to be appropriate to take disciplinary action against such employees due to the health and safety risks such behaviour poses. In doing so best practice for conducting a disciplinary investigation and hearing should be followed and it is likely only in the most extreme of cases that dismissal for gross misconduct would be appropriate.

Please note that the above summary of the rules of returning to England from international travel are correct at the time of publication and should not be relied upon. We would recommend that the Government’s guidance on travel requirements and travelling abroad is consulted.