Green Means Go – Navigate Employee Vacation Plans Abroad Under the Government’s Traffic Light System

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The latest government travel review saw a number of changes to the Red, Amber, and Green listings. Perhaps more importantly, starting at 4 a.m. on July 19, those returning to England from Orange List countries who have been fully vaccinated with a vaccine administered by the NHS in the UK (more 14 days), or participating in an officially approved UK vaccine clinical trial. will no longer need to quarantine for 10 days.

As the holiday season quickly approaches and popular destinations like Croatia and Bulgaria are also moving to the green list, many employees may consider taking a last-minute vacation abroad.

In this article, we cover:

  1. The traffic light system
  2. Can we ask employees to tell us about travel plans?
  3. What do you do with an employee who returns from an amber or red vacation?
  4. Other vacation problems

1. The traffic light system

Let’s start with the traffic light system – what are the rules?

Our brief summary of the current traffic light rules is shown in the table below, but be sure to stay on top of any ongoing government changes by checking out here, and subscribing to the email alert. We also address some of the key issues to consider with Orange List travelers below. Countries can move in and out of the Green List quite quickly, as recently happened with popular destinations such as Ibiza, Mallorca and Menorca returning to the Amber List, so employers should stay on top of the evolving lists. in case may have consequences on the ability of their employee to work after their return from vacation.

2. Can we ask employees to tell us about their travel plans?

Our view is that you can ask employees to tell you about their plans for travel abroad before or after their vacation. This allows employers to establish which traffic light applies to the employee’s destination country. This can be considered a reasonable request from the employer in light of the current circumstances in the UK.

This information is likely to be personal data for data protection purposes and therefore employers will need a legal basis on which to obtain and store it. Provided that the employer’s approach is transparent and proportionate, it will likely be difficult for an employee to claim that there is no legal basis for his employer to collect and process such information: this is justified at purposes of meeting health and safety obligations towards staff and visitors. On the other hand, it is much more difficult to ask employees to provide their PCR test results after travel, given the requirement to quarantine or self-isolate at home, which means that There is little benefit to collecting data on test results.

In addition, employers have a duty to ensure that they do not knowingly allow employees to go to the office where they should self-isolate in a “designated place” (ie their home). , for the purposes of Health Protection (Coronavirus, Restrictions) (Self-isolation) England Regulation 2020. A violation of this requirement could subject employers to a fine of upwards of £ 1,000 if a returning employee shows up at the workplace during the required period of isolation or quarantine.

Trying to minimize your knowledge by not asking the relevant question before or after the employee returns from vacation is unlikely to put you on a good footing, especially if the employee mentioned it in an informal conversation. with colleagues. That said, most of the vacation provisions in employment contracts and policies only deal with notice requirements, duration, and pay. As such, any updates to your vacation policy, such as requesting notification of a foreign destination or indicating how forced self-isolation will be handled (see below) should be fully explained to employees as soon as possible. possible.

3. What do we do with an employee who returns from an orange or red vacation?

The first point to consider is the extent to which the employee can work normally.

For the vast majority of office workers, this just might be the case and will be business as usual, reflecting their current working from home arrangements. However, keep in mind that this could be tricky when confined to a redlisted hotel room, as essential work equipment may not be on hand. You may decide not to take any action when pursuing their vacation plans in this scenario – for example, paying them normally and not needing to treat the period as additional vacation.

The job is less straightforward when an employee cannot easily work remotely from the office (for example if their role involves particular risk and / or supervisory elements). The decision to conduct an Amber List holiday where the employee knows the return may involve a 10-day self-isolation period will rightly be viewed less favorably by employers. Symptoms of Covid or other illnesses will mean that your sickness benefit plan will go into effect during such a period (so statutory and potentially improved sickness benefit would be relevant). However, when this does not apply, employers will have to decide on their salary policy.

Despite the possibility of shortening the period of self-isolation by using the ‘test and release’ option on the fifth day of their return from vacation, recently presented by Michael Gove upon his return from Portugal, this still equates to at least five days of unforeseen absence. While some employers may generously consider these to be exceptional circumstances and pay employees as usual, a more realistic approach may be to treat the period as unpaid leave or agree to a reduction in entitlement. employee’s remaining annual leave.

Aside from the inconvenience to the company from an employer’s point of view, it is not difficult to envision disgruntled employees arguing that they should not be penalized for the consequences of the pandemic or the last minute changes. government to the list of traffic lights. Problems and grievances should always be dealt with on an individual basis, but a widely communicated overseas travel policy that applies to the entire workforce is probably the best place to start. This will set clear expectations and ensure fewer surprises for those who wish to travel to an orange or red destination.

4. Other vacation problems

Routine vacation matters will also need to be handled by HR, such as whether it is possible to dictate when and how much employees take vacation, as well as handling many requests for the same vacation period.

As usual, the responses will involve a range of employment considerations, including leave clauses in contracts and manuals, the Working Time Regulations 1998 (in particular Regulation 15 concerning periods of employment). notice of leave), processing of previous leave requests, specific business needs and your workforce demographics (including all protected features). You can see our previous discussion on what to do with unused vacation leave. here.

One thing is for sure, keeping up to date with travel and vacation rules as they evolve is essential. If you have particular difficulties in requesting an employee’s leave, tailor-made legal advice is usually advised.

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