Law unclear on leave for swine flu quarantine

Media statement Wednesday, June 17th, 2009

Law unclear on leave for swine flu quarantine

The Employers and Manufacturers Association is suggesting that employers pay their healthy employees who are quarantined away from the workplace to do so if the employee has sick leave available, though the legal obligation to do this is far from certain.

"Employers are in no way obliged to pay their staff when they are not at work and not ill," said EMA's chief executive, Alasdair Thompson.

"But we are suggesting to employers that if they can afford to pay them sick leave, and in the absence of a clear legal position on the issue that they might consider it," Mr Thompson said.

"Employers are only obliged to pay staff for sick leave when they are genuinely off work from illness as defined in the Holidays Act.

"Of course employers have the discretion to pay employees sick leave if they are not ill, but the situation some employers are now facing has never been tested in law.

"It's a matter for the government to decide if they will offer assistance to employees, and we have sent several messages to ministers asking for the government to clarify the situation.

"Calls by unions for employers to pay regardless of the circumstances are naïve; employers that close or send someone home from work could expose them to a range of other costs.

"We recommend employers rely on medical professionals to invoke their quarantine powers and not take the decision to close or send people home themselves.

"Our advice to employers if they are required to quarantine staff under the health law in brief is:

• If an employee is sick, they are to be paid their sick leave due if they have an entitlement.

• If an employee is not sick but quarantined, there is doubt over their eligibility for sick leave, but employers are advised to allow it to be used.

• If employees have no sick leave, then an employee and their employer can agree to use holiday leave entitlements. An employer may choose to offer special paid leave as well, but for many businesses the current financial environment may prevent that.

• While its obviously true that employees are not at fault in the case of quarantine, it's equally true employers are not at fault.

"Payments of this sort are in the interests of the public good and are role of the welfare system for which we all pay our taxes.

"Swine flu is expected to affect an employee for between two and four days, so employers and employees will usually work out what is sensible for them in the circumstances specific to them and the legal technicalities will be less important."

ENDS

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