Summer holidays to “banned” destinations

On 18 June 2020, the Government presented further plans for travel outside of Denmark. Under the new guidelines the Ministry of Foreign Affairs has confirmed that Denmark’s borders will reopen from 27 June 2020 to all EU and Schengen countries including the UK. However, the opening of the borders to these countries is subject to certain criteria which is set out below. This article sets out some practical tips for employers if employees want to take their summer holiday in a country for which holiday travel is not advised.

The Danish borders will be open to European and Schengen countries including the UK provided these countries have less than 20 new confirmed cases of Covid-19 per 100,000 people per week. The Danish government has confirmed that there will be additional criteria impacting travel based on a country’s testing capabilities for Covid-19, which will be confirmed on 25 June 2020 along with a list of “open” countries (those to which the Danish borders will be open) and “closed” countries (those to which the Danish borders will remain closed). The new travel guidance will take effect from 27 June 2020.

By now, most employers and employees will have planned the holiday period. However, this year, employers should notify employees of what applies in the workplace if employees go on holiday to countries other than those open countries.

It is not illegal for employees based in Denmark to go on holiday in closed countries, but the authorities have advised against all unnecessary travel to closed countries. In addition, an employer cannot, as a general rule, interfere with what employees do in their spare time and where they go on holiday. There is also no legal requirement for an employee to advise their employer where he or she is going on holiday. This potentially poses a number of issues for employers which are discussed below.

In connection with Covid-19, there is a potential problem with regard to the authority’s guidance that employees should self-isolate for 14 days after traveling to the countries to which unnecessary travel is not advised. Depending on the length of the employees’ trip, the employee may not be able to attend the workplace after being on holiday if the quarantine period runs longer than the employee’s holiday period. The employer is of course entitled to expect the employee to return to the workplace after the holiday period.

An employer could also be faced with the potential consequence of the employee’s inability to travel home because he or she has been infected with covid-19 during the holiday. In addition, there is the issue of the employer becoming aware that the employee has made an unnecessary trip in contravention of the Ministry of Foreign Affairs guidance and has subsequently returned to work, without a period of self-quarantine. An employer is under an obligation to establish a safe working environment for all employees pursuant to Working Environment Act. In the context of Covid-19 this requires an employer to arrange the workplace properly to ensure that employees do not run an increased risk of infection. This could be problematic if an employee has travelled to a county where travel is not advised and has returned to the workplace.

To combat these potential issues, it is prudent for an employer to prepare guidelines for employees covering travel implications in light of Covid-19. It is important that the guidelines inform employees about the potential employment consequence of holidaying in a closed country, particularly if this impacts their return to work.

If an employee has to self- quarantine and is able to work from home during the quarantine period, then the employer could allow for this within the guidelines.

If an employee cannot work from home and has travelled to a “closed” country ignoring the guidance from the Ministry of Foreign Affairs an employer may consider the following:

1. The employer may decide that the employee is not paid for the 14-day period of self-isolation. This may be especially relevant if the employee is unable to perform his / her duties at home. In this situation the employee will remain at home without pay.
2. In certain situations, an employer could consider the dismissal of the employee who has ignored travel guidelines. The employee’s most important duty in the employment relationship is to supply labour, and the employer is obliged to pay the wages for the labour. If the employee is unable to provide labour due to their own actions this could justify dismissal and, in some cases, dismissal without notice. The employee’s knowledge of the guidelines and the potential consequences to the employment relationship will impact the decision to terminate the employment without notice. If an employee deliberately violates an employer’s policy and chooses to holiday in a closed country this could be grounds for dismissal without notice. This could also apply where an employee has travelled to a closed country and returns to work without a period of self-quarantine, thus putting other employees at risk.

Guidelines to employees travelling on holiday do not have to be complex and as an example could contain the following wording:

“If you travel on holiday to a country or destination where the authorities advise against unnecessary travel, and you have to self-isolate upon your return and are unable to work from home the subsequent 14 days of home quarantine, the absence from work will be considered self-inflicted”.

From an employee’s perspective consideration should be given to what destination is chosen for a summer holiday, particularly with regard to which countries you can enter and whether there is a requirement that you must be in isolation before you can move around.