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Can I NOT go back to work?

Now that a number of Covid-19 related measures are being eased, with a number of businesses and operations being resumed, can an employee refuse to go back to work? What are the obligations set upon employers and employees in this transition phase?

Without beating around the bush, it is safe to state that anyone who refuses to go back to work should do so with a full understanding of the potential severe repercussions. Abandonment of the place of work would constitute a just and sufficient cause at law for termination of employment. Hence, an employer may legitimately decide to terminate the employment of someone who refuses to return back to work.

Moreover, being dismissed from work because of a reason attributable to one’s own fault would result in an inability to benefit from unemployment social assistance for the first 6 months of unemployment.

Minister Carmelo Abela, responsible for industrial relations, has recently warned workers that once establishments are being reopened, employees did not have an option to stay at home. However, as Minister Abela explained, as with most things in life, there are exceptions to an employer’s right to outrightly dismiss an employee who refuses to return to work.

In this post Covid-19 transition phase, the main reasons which would reasonably excuse an employee from returning to work are:

  1. Medical Reasons;

  2. An obligation to care for minor children in the absence of alternative care arrangements available.

Legal Notice 111 of 2020, which has required that vulnerable persons remain segregated in their residence, is still in effect. Hence, an employee who is considered a ‘vulnerable person’ should not be bound to return to work. Furthermore, although the legal notice provides that a vulnerable person may go to work in case of an emergency, and this only for a limited time, this exception should now be evaluated in the current circumstances where an relaxation of measures across the board results in increased exposure and, hence, risk of infection to the employee.

With schools and child-care centres still closed, it is reasonable to expect that a number of parents will find it hard to return back to the place of work. Hence, while said situation persists, employers should not dismiss employees who have such issues, but should possibly benefit from the various schemes and packages being offered by the Maltese Government and the Malta Enterprise.

It is always advisable for employers and employees to constantly communicate with one another, so as to find a workable and safe solution for both parties.

Dr Anthea Witney Turner

Employment Law - Civil Law - Personal Injuries

Disclaimer: This commentary should not be regarded as legal advice.

If your business is unsure about what measures to adopt under these pandemic circumstances, kindly contact us so we can then assist you in setting up a strategy which works for you. If you are an employee who is concerned about your safety and future at the work place and wish for further advice on this matter please contact us so we may assist you.

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