Coronavirus: How to handle employees who travel to “quarantine countries”

As part of the new reopening model, countries in the EU, the Schengen Area and the UK will be listed each week as either “an open country” or a “quarantine country”.

Accordingly, as of 27 June 2020 it will again be possible to organize the summer holiday in open countries. Travel guidelines for all open countries will therefore change colour from orange to yellow just as the Danish Ministry of Foreign Affairs will no longer advise against unnecessary travels to these destinations. At the same time, employees travelling to these open countries will no longer be recommended to quarantine for 14 days upon return. The travel guidelines change on a weekly basis, however, if a country shifts into a quarantine country during the travels, there is still no recommendation to quarantine for 14 days upon return assuming that the employee has otherwise been following the recommendations of the Ministry of Foreign Affairs. However, the employee is recommended to be tested upon return.

Nonetheless, the new reopening model gives rise to several questions for companies with employees who are planning holiday to a “quarantine country” as the Danish Ministry of Foreign Affairs still advises against travel hereto.

It follows from the rules in the Danish Working Environment Act that companies are responsible for ensuring the health and safety at the workplace. The requirement entails that companies have a duty to reduce the risk of infection with coronavirus at the workplace to the extent possible. Should one or more employees plan to take summer holiday in a “quarantine country” and, due an insufficient number of days of holiday upon return, are unable to quarantine for 14 days without it inflicting with their work. In these situations, it’s important to establish clear rules on how to handle the increased risk of infection if the employee wants to come back to work.

When drafting internal guidelines, the consequences of travelling to countries which the Danish Foreign Ministry advises against should be made clear to the employee, including the possibility of summary dismissal, termination, or unpaid time off during the quarantine period.

Can companies summarily dismiss employees for travelling to “quarantine countries”?

Companies should as a general rule not interfere with the destination of the employee’s holiday. However, due to the current extraordinary situation, it’s considered necessary to prevent employees from exposing colleagues to an increased risk of infection with coronavirus as a direct consequence of their summer holiday.

To limit the risk of infection at the workplace and to comply with the guidelines of the Danish Working Environment Authority, companies should, therefore, inform employees that they will be subject to a 14-day quarantine period upon return if they travelled to a “quarantine country” during their holiday.

If the guidelines are followed but the 14-day quarantine period extends beyond the holiday, companies may consider the employee’s absence as unlawful. This also applies if the employee has to quarantine at home as a result of their children being subject to quarantine requirements in accordance with the guidelines issued by the Ministry of Children and Education.

Should an employee nevertheless attempt to return to work before the 14-day quarantine period has expired, the company can lawfully refuse to accept the employee at the workplace.

Irrespectively, in these situations the inability to report for work is considered as self-inflicted. That means that the absence can be considered as unlawful which, as a last resort and due to the serious breach of duties, can constitute grounds for summary dismissal. Alternatively, companies can elect to consider the unlawful absence as unpaid leave.

As for other cases concerning breach of duties, it plays an important role whether the company informed the employee adequately about the applicable internal guidelines. Therefore, it’s important to inform employees directly and in writing about the company’s internal guidelines.

The Danish Working Environment Authority has announced that it will resume its supervisory visits within all industries as Denmark gradually reopens. Furthermore, it announced that under each supervisory visit, it will focus on the risk of infection with coronavirus at the workplace. Companies must consequently be aware of the potential consequences insufficient measures to prevent the risk of infection may cause in practice.

IUNO’s opinion

In connection with the gradual reopening of Denmark as well as the rest of the world, more new questions and challenges arise as companies must continue to prevent the risk of infection with coronavirus at the workplace. Companies should, therefore, consider introducing clear guidelines on the consequences if employees act contrary to applicable internal guidelines and choose to travel to countries with still triggers a significant risk of infection.

If companies that wants to enforce that employees upon return must quarantine without salary, or as more severe measures, terminate or summarily dismiss employees for breach of duties, IUNO recommends to clearly and in writing inform all employees on the applicable rules if the employees travel to a “quarantine country”. This includes the risk of unpaid time off during the quarantine, termination or summarily dismissal.

However, as these issues are both new and complicated, companies should seek prior legal advice before requiring employees to quarantine without salary, termination, or summary dismissal employees for breach of duties.

[The Danish Ministry of Foreign Affairs travel guidelines are updated on an ongoing basis and can be found here]