How Employers Should Handle Their Staff during the COVID-19 Pandemic
Derrick Omollo | 20th April 2020Career Development
How Employers Should Handle Their Staff during the COVID-19 Pandemic
Derrick Omollo | 20th April 2020Career Development
Naivasha-based flower farms might not be able to pay salaries in the coming months if the crisis caused by the coronavirus pandemic persists.
By 23rd March 2020, the flower industry had sent more than 2,000 workers on a two-week paid leave. Some flower farms in Naivasha had resorted to destroying flowers worth millions of shillings every day as the product could not reach the EU market. Naivasha Subcounty Commissioner Mathioya Mbogo assured farmers during meetings of the government's support. He and other senior government officials asked the farms not to sack the workers.
In the same vein, the Union of Kenya Civil Servants (UKCS) through it’s Deputy Secretary-General threatened to go to court after fears emerged that civil servants could have their salaries slashed should the pandemic hit a crisis level. The money would then be directed to fighting the spread of the virus, specifically to create makeshift hospitals in different parts of the country, akin to those built-in Wuhan and other Chinese cities where the virus has ravaged communities since December last year. Public Service Cabinet Secretary has since downplayed these fears.
The COVID -19 pandemic is causing employers headaches worldwide amid dwindling resources and diminishing revenues. Even then, the government of Kenya on Monday (30th March 2020) through an address to the nation by Health CS Mutahi Kagwe made an appeal to employers not to subject their employees to pay cuts or layoffs as the impact of Covid-19 on the economy began to become more glaring.
The government had already moved to cushion employees by reducing taxes on their salaries but the efforts seem to be too little to make any impact, even as the economy stares on more business closures.
What are the legal obligations for employers?
Employers have a general responsibility to ensure the workplace is healthy and safe for all employees, customers and other people who visit the workplace. In addition, the law places responsibility on employees to ensure their own safety and health, and the safety and health of other people, who may be affected by the employees’ acts or omissions at the workplace. Therefore, employers need to put in place measures that would ensure the safety of their employees at the workplace in all situations, but particularly now where there is the risk of the virus breaking out in Kenya. Employers have a legal obligation to ensure the safety, health, and welfare at work of their employees under the Occupational Safety and Health Act (the OSHA). Employers should conduct a risk assessment to identify the risks of a COVID-19 outbreak at work and adopt preventive and protective measures to minimize that risk.
Some measures employers should implement include:
Employers should disseminate current information and resources on Coronavirus to its employees. As a starting point, employers should begin by following the current guidelines from the Ministry of Health and the National Emergency Response Committee on Coronavirus preparedness and response from the Ministry of Health website: http://www.health.go.ke/category/news/ and internationally, the World Health Organization’s Update on COVID-19 Outbreak.
Setting up preventative workplace behaviors
Employers should also explain expectations of proper handwashing and coughing etiquette and display factsheets and posters on how to stop the spread of the virus.
Avoid compelling employees to submit to a medical exam
While the Employment Act mandates employers to take all reasonable steps to ensure that he is notified of the illness of an employee as soon as reasonably practicable after the first occurrence of the illness, employers should avoid making unnecessary inquiries into an employee’s medical status and should not require employees to undergo medical exams.
Offer medical attention to Employees
The Employment Act provides that every worker is entitled to paid sick leave of up to thirty days per year, after completion of two months of service (employers have the discretion to provide for longer periods of sick leave). The Employment Act does not anticipate whether the sick leave periods provided under one’s employment contract would apply in the event of an outbreak of the Virus and this presents a challenge to employers. In the event of a mandatory quarantine, for example, a quarantined employee could argue that the isolation period should not be deducted from their sick leave as it was not confirmed whether or not such an employee was infected. In addition, where an employee is only entitled to thirty days of sick leave, what happens to the additional days that the employee is unable to come to work?
Further to this, an employer is required to ensure the sufficient availability of proper medicines for employees during illness and, if possible, medical attention should also be provided during serious illness. Most employers comply with this requirement by providing medical insurance for their employees. Employers, therefore, need to consider what their medical insurance packages currently offer and how this would apply in the event of an outbreak of the virus.
In summary, employers need to review and consider whether their employees would be covered under their current medical insurance packages in the event that the virus was to break out, whether the sick leave periods would apply and the measures to put in place to ensure business continuity.
What are some of the best practices for employers during this period?
Some of the best practices employers may adopt include:
Updating current policies and procedures
As a matter of best practice, employers should create a plan that sets out the steps that they are taking to prevent and protect against an outbreak at the workplace and the steps to be followed if there is an outbreak. For instance, Kenyan Labour laws do not provide for ‘work from home’ guidelines. Taking into consideration the infectious nature of the virus, employers in certain affected countries are being advised to encourage their employees to work from home. Since the law does not provide specific guidelines on this, it is up to employers to establish their guidelines that would need to conform to existing legislation.
Encouraging open lines of communication
Employers should require employees who become ill at work with COVID-19 coronavirus symptoms to notify their supervisor. Employers should encourage employees to self-isolate if they have been in a place where there is a spread of Coronavirus or if they have been in contact with someone who has been to a high-risk country regardless of whether they are manifesting symptoms.
Anticipate and address potential discrimination
The spread of the virus has seen an increase in the profiling of people of different races not only in Kenya but around the world. Kenya has seen an increase in the profiling of Chinese nationals due to the Virus. This has led to the Chinese Embassy in Kenya releasing a statement advising against racist remarks against its citizens.
An important question to consider is how an employee would be treated in the event they were to become infected with the virus or are suspected of having been infected. Both the Kenya Constitution and the Employment Act prohibit discrimination on the basis of several factors, including race, nationality, and health status. It is therefore important for employers, whilst putting in place policies to deal with the contraction and spread of the Virus, to carefully consider their actions in order to avoid any discrimination claims or discriminatory treatment of affected staff. Employers should also consider how health information of affected employees will be protected because such information is considered as “sensitive personal data” that is protected under the Data Protection Act.
In addition, while employers are entitled to terminate one’s employment on the ground that an employee is too ill to work, due care and sensitivity must be exercised before this is done and due process for termination as a result of incapacity has to be followed. Termination of an employee because they have contracted an infectious disease may amount to discrimination and we would advise that legal advice is sought beforehand.
Employers should be wary against engaging in conduct that may be viewed as treating employees less favorably or unfairly on the basis of illness, impairment or disability. Employers may impose reasonably, and justifiable restrictions if there is a direct threat to the health or safety of others but not if they base decisions to restrict employees from work on any protected grounds including gender, race, age or disability.
Communicate with employees on leave and potential salary reductions
In a crisis situation, it may be necessary to require employees to take compulsory leave (paid) and even unpaid leave. Where it is impossible to continue to have employees attend their places of work and where such employees cannot telecommute, employers may consider placing employees on compulsory leave for a definite period. Employees will be entitled to their full salaries during this entire period. Where an employer requires employees to take unpaid leave, the employer must obtain the employee’s consent. However, it is important to highlight to the employees the fact that if they do not consent to such unpaid leave then the likelihood of loss of a job would increase. Where an employer intends to implement salary reductions, the employer should obtain the employee’s consent in writing.
Adhere to statutory requirements on redundancy
Ideally, employers should first consider salary reductions, compulsory leave, and unpaid leave. Any salary reductions and unpaid leave by employers should be done with the employee’s consent. However, employers may be required to make difficult decisions and lay off employees. In case of such eventualities, employers would ordinarily be required to comply with the mandatory redundancy provisions under the Employment Act
What entitlements should be paid to employees?
There are different options available for employers in respect of their workforce:
Consider adopting telecommuting measures
Telecommuting or teleworking refers to a work arrangement in which employees do not commute or travel to a central place of work and are mandated to work from home. It is recommended as one of the most effective approaches to reducing the spread of COVID-19. While many jobs cannot be performed remotely, if telecommuting is an option, employers should adopt policies to delineate the responsibilities of both parties to the arrangement including establishing compliance protocols for timekeeping and employee oversight for remote workers. Employees will be entitled to their full salaries throughout this period.
Administration of sick leave
Employers should require that employees who have developed symptoms of Coronavirus go on sick leave if the employer has a reasonable objective belief that the employee poses a direct threat to other staff. The employee’s sick leave entitlement from their employer will depend on the employer's policy.
How do we deal with an employee that has tested positive for COVID-19?
Where you suspect that an employee is exhibiting symptoms of the virus or has tested positive you should encourage the employee to contact a qualified health care provider as well as government health officials to seek immediate medical attention if they have not already. Employers should request such employees to stay home for a minimum 14-day period of time to limit the spread of the infection in the office.
The subject employee should be requested to identify all individuals who worked in close proximity with them in the previous 14 days to ensure you have a full list of those who should be sent home. The employer should also identify all areas in the office where the infected employees were physically present and liaise with government authorities from the Ministry of Health to have those areas sanitized immediately by a qualified professional.
Best practice by employers in the event of an outbreak of the virus
Although Kenyan labor laws offer some insight on issues that may be faced in the event of an outbreak of the virus, it does not offer clear guidelines for employees to comply with.
The Centre for Disease Control and Prevention (CDC), has recently established a best practice manual titled: Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), February 2020 which provides guidelines that may be relied upon by Kenyan employers when responding to the virus. Some of the measures that employers should consider based on recommended best practice are:
- Communicating to employees about the Virus, symptoms of illness, how it is spread and measures that staff should practice to avoid exposing themselves to contracting and spreading the Virus (for example washing hands, re-considering non-essential work travel, considering attendances at conferences and meetings that expose employees to large crowds). Care should, however, be taken not to cause panic.
- Limiting work travel especially to high-risk areas and having employees who return from travel to such areas stay away from the workplace during the incubation period, which according to WHO ranges from 1-14 days, but most commonly around five days.
- Putting in place work from home policies that allow employees to work remotely in the event of an outbreak.
- Replacing physical meetings with conference calls.
- Review of sick leave and insurance policies to confirm the requirements in the event employees are diagnosed with the virus.
In implementing such measures, care should be taken to avoid singling out employees from a specific race or territory as that can lead to discrimination claims.
The following strategies proposed by the CDC are useful reference points for employers:
- Actively encourage sick employees to stay home;
- Separate sick employees;
- Emphasize respiratory etiquette and hand hygiene by all employees;
- Perform routine environmental cleaning;
- Advise employees to follow the guidelines set out by the Ministry of Immigration and Registration of Persons before traveling;
- An employer should inform the other employees if an employee is found to be infected by the virus (whilst respecting the affected employee’s privacy rights); and
In developing a response plan, employers should be flexible and should account for the severity of the outbreak, and account for possible increased numbers of employee absences. This may be done through:
- Cross-training of personnel to perform essential functions so that the workplace is able to operate even if key staff members are absent;
- Assessing the essential functions and the reliance that others and the community have on your services or products. Be prepared to change your business practices if needed to maintain critical operations (e.g., identify alternative suppliers, prioritize customers, or temporarily suspend some of your operations if needed);
- Employers with more than one business location should provide local managers with the authority to take appropriate actions outlined in their disease outbreak response plan; and
- Coordinating with local health officials so that timely and accurate information can guide appropriate responses in each location of their operations.
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