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COVID-19 and employee holidays abroad: what are employers’ rights and duties?

Written by
Claeys & Engels offers reassurance in the full range of human resources matters and fast, efficient and pragmatic legal advice.
Authors
Sophie Maes
Partner - Belgium
Claeys & Engels
Ester Vets
Associate - Belgium
Claeys & Engels
Belgium
13.07.21
17
What do employers have to consider when employees go on holiday abroad in COVID-19 times? This article explains the Belgian position and Ius Laboris lawyers from around the Alliance provide a perspective on employer’s rights and obligations in their jurisdictions.
Belgium

This article has been updated based on the available information until 4 July 2021. As the government measures have been amended several times in recent months, it is always recommended you consult the relevant governmental website.

 

The summer of 2021 seems to be another summer in Belgium of travel measures, possible COVID-19 testing and quarantine obligations. Many employees will be leaving for holidays abroad in the coming days or weeks, which raises several questions for employers. Employers must take adequate prevention measures in relation to COVID-19 and in general to ensure the employees’ health and safety is not compromised.

 

In addition, from 27 June 2021 teleworking is no longer mandatory in Belgium, although it remains strongly recommended until (currently) 30 September 2021. So what are your rights and duties as an employer if your employees return from a holiday risk area? To determine which regions pose a risk, the Belgian FSP Foreign Affairs uses coloured risk areas (see here):

  • Green zone: regions or countries for which a low risk of infection has been identified;
  • Orange zone: regions or countries for which a moderately elevated risk of infection has been identified;
  • Red zone: regions or countries where individuals are at a high risk of infection;
  • Very high-risk area: regions or countries where a variant of concern has spread to a significant extent.

 

The list of countries in the EU and the Schengen Area is updated every week; the list for third countries is updated every two weeks. 1 Before departure The employer cannot oblige the employee to communicate his or her planned travel destination(s) nor can the employer forbid the employee to travel to a risk zone. It is, of course, possible to discuss travel destinations and any quarantine obligations involved with employees on a voluntary basis. It is also recommended to focus on clear communication, urging employees to follow and strictly comply with the travel restrictions of the Belgian FPS Foreign Affairs.

 

2 On return

2.1 Mandatory information?

The employee is not obliged to inform the employer of his or her travel destination(s). Systematically requesting employees’ travel destinations could also cause discussion with regard to their right to privacy. The Belgian Data Protection Authority is of the opinion that an employer cannot oblige its employees to fill in a questionnaire regarding their recent travel destinations. However, the employer can draw the employee’s attention to the general obligation for all individuals present in the workplace to comply with the rules imposed by the government regarding COVID-19 (including filing in the PLF form, explained below, and the testing and quarantine obligations if applicable). Compliance can be checked by the occupational physicians and by the inspection services, who may also ask all persons involved to provide evidence of compliance with these obligations. In any event, if the employee is placed in quarantine, s/he must inform the employer immediately and, if the employer so requests, provide a medical or quarantine certificate. In practice, the employee will therefore have to communicate his or her return from a very high-risk area.

 

2.2 Mandatory test and medical certificate?

The employer cannot oblige the employee to undergo a COVID-19 test or to provide a medical certificate stating that the employee is fit for work. Therefore, the access to the work floor cannot be denied to an employee who has returned from a green or orange zone.

 

2.3 Mandatory quarantine?

An employer cannot oblige an employee to go into quarantine when returning from international travel. Upon return to Belgium, employees and their family members must complete the Passenger Locator Form (‘PLF’ see here https://travel.info-coronavirus.be/public-health-passenger-locator-form) within 48 hours before arrival in Belgium. The PLF will consider the individual’s movements over the last 14 days to determine if mandatory quarantine or test obligations apply. No PLF must be completed if the stay outside Belgium lasted less than 48 hours unless the person travels to Belgium by aeroplane or boat from anywhere or by train or bus from a country outside the EU or the Schengen Area. No quarantine nor test obligations apply on return from a green or orange zone. Access to the workplace can thus not automatically be denied to an employee returning from green or orange zones. However, the employer and the employee can of course make the necessary arrangements for teleworking if possible.

 

If employees are returning from a red zone or a very high-risk area, as of 1 July 2021, a distinction must be made based on the digital COVID-19 certificate (proof that someone is vaccinated, recently tested negative or recovered from COVID-19). In addition, a distinction must be made between Belgian residents, EU/Schengen residents and non-EU/Schengen residents.

 

In our overview below we assume the employees are Belgian residents as this situation will be the most common for Belgian employers. The rules for EU/Schengen residents and non-EU Schengen residents are not included in our overview below.

 

2.4 Temporary unemployment or sick pay?

The following principles apply with regard to temporary unemployment and sick pay:

  • The employee is not entitled to temporary unemployment benefits if s/he is fit for work and must undergo compulsory quarantine because of a return from a red zone that was already red on the date of departure (e.g. the employee does not have a COVID-19 certificate and does not take a PCR test or the employee takes a positive PCR test and is not fit for work).
  • The employee is also not entitled to temporary unemployment benefits when returning from a very high-risk area that was already considered a very high-risk area at the time of departure. The National Employment Office (NEO) FAQs do mention an exception for essential travel, such as travelling for professional reasons. The NEO reserves the right, in the event of professional travel, to verify whether the employer has not acted manifestly unreasonably by sending the employee abroad (this will be a question of fact). If the zone had not yet been designated as very high-risk at the time of departure, an employee who is fit for work and cannot telework is entitled to temporary unemployment benefits (‘quarantine certificate’).
  • The employee is entitled to sick pay for 30 days if s/he is unfit for work due to COVID-19 infection (‘medical certificate’).

 

Sophie Maes, Ester Vets, Claeys & Engels

Travel zone rules in Belgium
Canada

As a general rule, employers in Canada cannot ban employees from travelling outside of the country for personal reasons. However, many employers are introducing policies requiring employees to notify the employer if they have taken a trip out of the country.

Where a Canadian employee is returning from an out-of-country trip, they may be subject to a government imposed self-isolation period. If not fully vaccinated, travellers to Canada including Canadians and permanent residents are required to self-quarantine for a full 14 days and submit to additional PCR testing on and post-entry. Travellers who have been fully vaccinated at least 14 days before entry to Canada must take a COVID-19 test on entry to Canada and monitor for symptoms. These travellers are not required to self-quarantine.

All travellers to Canada, with limited exceptions, must use the ArriveCAN mobile app to submit supporting information including contact information, travel details, as well as vaccination and pre-entry COVID-19 test information. Travellers must also submit an online quarantine plan within 72 hours before entry into Canada and, if not yet fully vaccinated, must also confirm a reservation at a government-authorised hotel for the first three days of their quarantine.

Employers should not allow an employee to return to the workplace during a government imposed self-isolation period or if the employee has any COVID-19 symptoms, and should assess whether the employee can work remotely during this time. Where the employee cannot perform work away from the workplace during the self-isolation period, the employee may be entitled to a statutory leave or other leave provided under the employee’s contract or the employer’s policies. After the government imposed self-isolation period has ended, and prior to returning to the workplace, the employer should require the employee to confirm that they have not contracted COVID-19 and have no symptoms of illness. Note that in some instances, certain temporary foreign workers in Canada are not legally allowed to work during any initial or re-entry period of self-isolation.

Any personal health information collected during this process must be treated as private.  Employers should also be mindful of human rights claims that may arise if the employer stereotypes or targets employees of a particular race, nationality, ethnic origin or ancestry, asking them detailed questions about their travel history.

Katie Van Nostrand, Sarah Smith, Mathews Dinsdale

 

Chile

Given the fact that currently in Chile the borders are closed, and will remain like that until 25 July, is unlikely that employees will travel abroad until near future. However, if an employee (or any other individual) travels out of Chile, on return, /s/he shall comply with the sanitary measures. A Chilean national entering Chile must have proof of a negative PCR test for COVID-19 performed a maximum of 72 hours before entry which must have been carried out by a recognised health authority laboratory in the country where it was conducted. Arrivals in Chile must also undergo a mandatory ten-day quarantine period upon arrival.

 

Employer´s rights and duties

 

Teleworking

There is a strong recommendation to continue working from home for all positions that can do so and employees should return to on-site work only in cases of necessity.

 

Employers must take the following measures:

 

  • Implement remote work without reduction of pay for employees who demonstrate they suffer from any condition making them vulnerable to severe symptoms if they get COVID-19. If this is not possible, employers must assign the employee to tasks that do not require customers or regular third party, provided this assignment is not detrimental to the employee.
  • Obtain health insurance to provide special COVID-19 coverage for all on-site employees.
  • Have in place a specific COVID-19 safety protocol.
  • If COVID-19 infection is due to exposure in the workplace, employers must submit a document called ‘individual complaints of occupational disease’ (DIEP) to the Mutual Aid Fund within 24 hours.

 

Employers may require their employees to provide a negative PCR test as a suitable mechanism for the prevention and control of COVID-19 infection and in compliance with the obligation to protect employees’ life and health as long as the economic cost is assumed by the employer and the PCR test does not constitute discriminatory conduct or violate employees’ fundamental rights.

 

Given the employer´s obligation to take all the necessary measures to effectively protect employees’ life and health, employers may ask employees whether they have recently travelled to a high-risk area, if they have been in contact with someone who is infected or if they are sick or have been diagnosed with COVID-19.

 

Marcela Salazar, Romina Gálvez, Munita & Olavarria

 

Finland

In Finland, in general, an employer may not require an employee to take a COVID-19 test, since testing is always voluntary. However, in some situations the employer may require, a negative test result by the employee before entering the work premises based on its general risk evaluation. A requirement for a negative test result must have some factual basis, such as a return to the workplace from a trip abroad, especially if the employee is returning home from a high-risk country (i.e. a red or grey traffic light country, the Finnish Institute for Health and Welfare’s traffic light model can found here).

 

Nana Karanen, Dittmar & Indrenius

Ireland

The general position in Ireland is that an employer cannot seek to prohibit employees from traveling abroad. However, there may be some basis for asking an employee about where they intend to travel or have travelled from in order to assess the impact it may have on their return-to-work date such as the requirement for them to self-isolate on return and to assess if there are any measures that need to put in place from a health and safety perspective on their return. The Irish data protection authority (Data Protection Commission) has recognised that situations may arise where employers need to be made aware of when an employee will be available for work (following any periods of quarantine or self-isolation) following travel to Ireland from abroad. Additionally, if employees are returning to the workplace following a period of remote working or lay-off, they are required to complete a pre-return to work questionnaire within which they may be asked to confirm whether they have returned from travel abroad. Employees should also inform their employer if there are any other circumstances relating to COVID-19, not included in the return-to-work questionnaire, which may need to be disclosed to allow their safe return to work. This could include information regarding their recent return from a particular country depending on the circumstances. Employers may also request employees to reconfirm that the details in the pre-return to work questionnaire remain the same following an extended period of absence from a workplace (e.g. following a period of annual leave). An employer should draw an employee’s attention to the Department of Foreign Affairs and Trade’s (DFAT) travel guidance at the time and ask them to comply with any requirements to self-isolate or restrict movements before returning to the workplace. From 19 July 2021, subject to the public health situation, Ireland will also operate under the EU Digital COVID Certificate (DCC) for travel originating within the EEA. From then a distinction will be made for travel originating inside and outside the EEA.

 

For travel originating from within the EEA, the employee will be required to complete a passenger locator form indicating what the employee is relying on for travel (i.e. proof of vaccination or a negative PCR test within the 72 hours of arrival or recovery). The DCC can be used to prove the individual’s travel status. For travel originating outside the EEA, the employee will have to consider DFAT’s travel advice and on return may be subject to specific entry requirements and restrictions depending on their individual travel status and the country from which they have travelled.

 

Declan Groarke, Lewis Silkin Ireland

 

Italy

In an interesting decision of 21 January 2021, the Court of Trento found that an employee who had been absent from work for 14 days to comply with the mandatory quarantine after returning from holidays abroad was lawfully dismissed by his employer on disciplinary grounds. The Court found the dismissal to be fair because the employee had willingly decided to go on holiday abroad, knowing that this would entail an absence significantly longer than the one agreed with the employer, without informing the employer beforehand or taking into account the negative consequences that this would have on the business.

 

So, while employers probably cannot oblige employees to inform them of their holiday destinations, both parties should act in good faith. Also, the employer may evaluate with the competent doctor what measures to adopt, updating the company protocol, to ensure a safe return to work.

 

Valeria Morosini, Toffoletto De Luca Tamajo e Soci

 

Luxembourg

Employees are not obliged to communicate the destination of their holidays and employers cannot impose any requirements, in view of their right to privacy.

 

Regarding travel abroad, Luxembourg nationals are invited by the government:

 

  • to enquire about the rules of entry applicable in destination countries;
  • to declare their travel plan on the Lëtzebuerger am Ausland site prior to embarking on their trip;
  • to contact the Ministry of Foreign and European Affairs for specific information regarding a particular destination, if necessary.

When coming back from holidays, an employee cannot refuse to return to work if the employer took the appropriate measures to protect employees’ health and safety (barrier measures, prevention and information measures, health protocols etc. are recommended by the Government).

 

Except for certain professionals in the health sector, an employer cannot require an employee to give a negative test result in order to allow him or her to return to the workplace, in particular after holidays abroad.

 

When coming back from holidays, anyone, regardless of nationality, aged six or over, who wishes travel to Luxembourg by air must present upon boarding:

 

  • either a vaccination certificate attesting to a completed vaccination course issued by an EU Member State or Schengen Area public or medical authority; or
  • a recovery certificate issued by an EU Member State or Schengen Area practitioner or national authority for individuals who have had a recent SARS-CoV-2 infection within six months prior to travel and who have completed the applicable isolation period in that country with resolution of all symptoms of infection; or
  • the negative result (on paper or electronically) of a COVID-19 test by PCR/TMA/LAMP carried out less than 72 hours before the flight by a medical analysis laboratory or any other entity authorised for this purpose or of a rapid antigen test carried out less than 48 hours before the flight by a medical analysis laboratory or any other entity authorised for this purpose.

 

Some categories of people are exempt from this requirement.

 

Additional sanitary measures apply until 15 July 2021 for any travel to Luxembourg from the UK and from India, regardless of the means of transport, including a testing and quarantine obligation.

 

When an employee tests positive for COVID-19 or has been in contact with an infected person, the Director of Health issues an isolation order or a quarantine order, which is used as a certificate of incapacity for work. Since 13 June 2021, people who have been vaccinated or have recovered from Covid-19 are exempted by law from quarantine.

 

Dorothée David, CASTEGNARO

 

Netherlands

Colour coding

 

The Dutch government is taking a two-step approach: colour coding and risk qualification.

 

The colour codes are as follows:

 

  • Green: free to travel.
  • Yellow: free to travel, however there are risks to be considered.
  • Orange: travel only in case of necessity (holiday travel is not considered necessary travel).
  • Red: do not travel.

 

These colour codes are not only used for Covid purposes. Other factors also taken into account include the political situation.

 

For the obligations that travellers need to comply with due to Covid when travelling to the Netherlands, the government is dividing countries into the following zones:

 

  1. Safe zone (most green and yellow labelled countries);
  2. High risk area (orange coded countries);
  3. Very high-risk area (orange/red coded countries);
  4. Very high risk due to a variant of concern (orange/red coded countries).

 

The measures to be complied with when entering the Netherlands very much depend on this risk qualification rather than merely the colour code. See the table below for an overview, in which we have tried to capture the requirements per situation. It is, however, important to understand that these requirements are subject to change on a 24-hour basis. If and when travelling to the Netherlands it is very important to frequently verify the actual status and required preparations. This is best found on the Dutch government website here.

 

What does this mean for the employment relationship?

 

Before departure

Employers cannot oblige employees to communicate their planned travel destination, but can refuse a request to travel to a very high-risk country/zone. If the employee chooses to travel nevertheless, it is important to clearly inform the employee that s/he may bear the consequences (see below). For current high-risk countries and safe countries, it appears that there is no longer urgent advice to quarantine, at least not for return from destinations within the EU.

 

On return

Although an employer can ask for the employee to disclose their travel destination, the employee is not obliged to answer. However, where an employee is unable to return to work due to a mandatory quarantine (and cannot work from home), this falls within the scope of the employee’s risk. An employer would not be obliged to continue salary payment during this period. If, however, the employee must home because of actual illness (COVID-19 or otherwise) they are entitled to the relevant payment during illness.

 

Where urgent government advice to quarantine remains in force, the situation becomes more difficult for employers. Where it is aware of this, employers can request the employee to comply and the same rules as with mandatory quarantine apply in relation to entitlement to salary payments.

 

As the situation is complex for all involved, it is strongly recommended to avoid discussions on return. This can be done by ensuring good communication around the risks of going to a holiday destination that requires a mandatory or strongly recommended quarantine. Where this quarantine is not included in the employee’s holiday period, and the employee is not able to work from home, the employee should be made aware of the fact that the employer will not be paying any salary during that period as it falls within the employee’s risk.

 

Hylda Wiarda, Bronsgeest Deur

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Travel zone rules in the Netherlands
Peru

As part of the economic relaunch, travel is one of the sectors that are been reactivated in the past couple of months, but subject to possible COVID-19 testing and quarantine obligations. The countries currently considered as a risk are: Brazil, India and South Africa.

 

Many employees will be leaving for the national holidays abroad, which raises several questions for employers. Employers must take adequate prevention measures in relation to COVID-19 and in general to ensure the employees’ health and safety is not compromised. Please note, remote work remains possible until 31 December 2021.

 

 

  • Before departure

 

The employer cannot oblige the employee to communicate his or her planned travel destination(s) nor can the employer forbid the employee to travel to a risk zone, but they should be made aware of the risk that it implies. It is, of course, possible to discuss travel destinations and any quarantine obligations involved with employees on a voluntary basis. It is also recommended to focus on clear communication, urging employees to follow and strictly comply with the applicable travel restrictions.

 

 

  • On return

 

  • Mandatory information?

 

Everyone who returns to Peru from another country must have a negative PCR COVID-19 or Antigen test. The employee is not obliged to inform the employer of where they travelled; systematically requesting employees’ travel destinations could also cause discussion with regard to their right to privacy. However, the employer can draw the employee’s attention if they work on-site to the fact they need a negative test result to enter Peru.

 

If the employee tests positive for COVID-19 then it is recommended to require a test before allowing their return to the office.

 

In addition to the negative result required to enter Peru, if the employer wants to be double sure about the result they can require the employee to take an additional test, at the employer’s cost.

 

  • Mandatory quarantine?

 

An employer cannot oblige an employee to go into quarantine when returning from international travel. Peruvians and resident foreign nationals who travel to Peru from South Africa, Brazil or India, or who have made a stopover in these places must carry out mandatory quarantine at their home, lodging or a temporary isolation centre for 14 calendar days, counted from arrival.

 

  • Temporary unemployment or sick pay?

 

The following principles apply to temporary unemployment and sick pay:

 

  • If an employee has been to India, South Africa or Brazil or has made a stopover in those countries, s/he must quarantine at home. If the employee is entitled to in-person work, then the employer and employee can agree that this time can be treated as vacation or as paid or unpaid licence.
  • The employee is entitled to sick pay if s/he is unfit for work due to COVID-19 infection (‘medical certificate’). The employer carries on the payment for the first 20 days; from the 21st day, the Health System (ESSALUD) subsidy procedure applies.

 

Jose Antonio Valdez and Juan Carlos Valera, Estudio Olaechea

 

Poland

In Poland, no coloured risk areas system is used. Employees may travel to any destination they choose. Rules of entry to Poland are the same for employees and non-employees.

 

Individuals entering Poland must undergo ten-day quarantine. There are listed exceptions from the general rule for individuals who:

 

  • come from Schengen countries and have a negative PCR or antigen test result for COVID-19 performed within 48 hours before crossing the border counted from the moment of the test result;
  • were vaccinated by vaccines authorised for use in the EU;
  • have undergone isolation or have been hospitalised due to COVID-19 infection and are crossing the Polish border no later than six months from the end of that isolation or hospitalisation.

 

Early release from quarantine obligation is available for individuals who:

 

  • start their journey in Schengen countries, yake a COVID-19 test directly after crossing Polish border and receive a negative result;
  • start their journey in non-Schengen countries, undergo at least seven days’ quarantine, take a COVID-19 test and receive a negative result.

 

The external (non-EU) borders of Poland remain closed for tourists except for selected third-country nationals such as Belarus and UK nationals. The Polish borders with EU countries remain open.

Michał Kacprzyk, Raczkowski

 

Russia

Currently, Russian citizens are only allowed to travel to countries for which flights are open. The Russian government periodically updates this information. In Russia, when employees take holidays abroad, the employer can request a travel destination from employees, but cannot require employees to provide that information. On their return to Russia, employees who are Russian citizens are subject to two PCR tests. The second PCR test must be taken at least one day after the first test, but no later than five days after the date of entry into Russia. Russian citizens will be required to self-isolate until they have tested negative. There is an exception for those who have been vaccinated or have recovered from COVID-19 over the past six months.

 

Margarita Egiazarova, ALRUD

 

Slovakia

In Slovakia, an employee is not obliged to provide the employer with any specific information regarding his or her travel plans or history. As of 9 July 2021, an employee returning from abroad may request a doctor to issue a certificate of temporary incapacity for work for quarantine purposes and the doctor is obliged to issue it to the employee. The employer is obliged to respect the employee´s decision in this case and has no right to question it.

 

With respect to the mandatory quarantine, anyone aged over 18 is obliged to undergo a self-isolation for 14 days. This can be ended early upon receipt of negative test on the fifth day of quarantine at the earliest. Mandatory quarantine does not apply to fully vaccinated individuals at least 14 days after receipt of the second dose of vaccine (in the case of two-dose vaccines), and in cases provided in other exceptions defined in Slovak regulations.

 

Dajana Csongrádyová, Nitschneider