In this mid-pandemic world, we are all craving normalcy. Depending on where you are, you may be weeks or months into a COVID-19 lock-down that has seen businesses close and forced companies to adopt working-from-home policies across offices. While it is unclear when we will emerge on the other side of this global crises, it is certain that employers will need to carefully handle how and when their staff return to work.
The People's Republic of China (PRC) is ahead of the curve on the world stage, with much of the workforce returning to work in the last few weeks. However, that process has thrown up practical issues for employers. Building upon some of the lessons learnt by employers in the PRC, we have set out below some of the key considerations for employers in facilitating a safe return to work by staff.
Employers should continue to closely monitor the ever shifting body of government and WHO guidance. In some jurisdictions, there may be legal restrictions prohibiting employers from allowing or requiring employees to enter the workplace. Any reintegration programme should be consistent and compliant with applicable laws and government’s instructions.
If lawful to re-open the workplace, employers should also be mindful of their ongoing obligations. For example, in mainland China, employers must provide face masks and sanitisers to employees who come back to the work premises. Local governments such as Beijing further require employers to take effective measures to reduce the density of people in the same working space and keep distance between employees no less than one meter apart.
In Hong Kong, under the Occupational Safety and Health Ordinance, employers are required to ensure (as far as reasonably practicable) the health and safety of all employees. Therefore, employers in Hong Kong will need to be confident that asking employees to return to the workplace will not compromise their safety. A breach of health and safety legislation in Hong Kong, as in other jurisdictions, can be a criminal offence.
What we have seen in the PRC and in Hong Kong, is employers taking a phased approach to employees returning to work. For example, some employers have adopted a split team system (e.g. rotating between teams being in or out of the office) as a compromise between all employees working from home and having all employees back in the office. Another approach we have seen is employers encouraging employees back to office but continuing to operate a comprehensive flexible working policy to allow employees who are unable or uncomfortable to return to the office to continue to work from home for some or all of the working week.
Employers with operations in Europe, the UK and US may still be considering methods of managing down workforce costs (which we discussed in our previous briefing). In making these decisions, it is important to think ahead to when employees may be required to return to work. As discussed recently on our webinar, when asking employees to take a period of unpaid leave, think about how quickly those employees can return to work when demand returns and the markets recover. For example, will there be an agreed notice period to regulate the issue or can the employer cut short a period of unpaid leave.
A real fear of having employees return to the workplace is the continued risk of contamination. Therefore, employers will want to consider what additional measures will be necessary or appropriate to ensure a safe return to work by staff members. For example, employers may consider introducing or continuing to check the temperatures of staff and visitors entering the premises. Whether such checks will be legally possible will depend on local legislation. While in Hong Kong, it would be potentially lawful to introduce such temperature checks, employers should try to limit the amount of personal data they collect and store. Therefore, the temperature check could be used to vet who can gain access to the workplace, with that information destroyed immediately and not used to ‘trace’ employees/visitors going forward.
While employers might be tempted to impose medical screening for employees before returning to the workplace, such a measure may be expensive and will be difficult legally to implement in many jurisdictions, including across the APAC region. For example, in Japan and mainland China, an employer generally cannot require an employee to attend medical examinations: employee consent will be required. Employees should also be informed of the purpose for which the test results will be used and the employer must be careful not to use the information for a purpose other than that notified to employees.
Employers should also continue to be mindful of their obligations under data protection legislation. In Hong Kong, collection of information about an employee’s health is subject to the usual data protection requirements under the Personal Data (Privacy) Ordinance (PDPO), including that data must only be collected for a lawful purpose, fairly and not to an excessive extent. If employees are asked to submit a health declaration or provide information about their travel history or symptoms, the employee must be advised of the purpose for which the data is being requested (e.g. to assess whether the employee is a risk to the workplace; to notify insurers; etc.) and the details of anyone to whom the data might be transferred (e.g. to their manager or HR). Employers should be careful to ensure that in collecting any additional employee information they do not trip up on any data protection issues. In mainland China, data protection is less regulated compared to Hong Kong, but it is always recommended to follow these best practices in collecting and using personal data.
On what terms?
The impact of COVID-19 on employers may have thrown light on certain deficiencies in employment contracts and policies. While employee consent is generally required for any change to terms and conditions of employment (making changes to existing employment contracts a potentially difficult exercise), employers may want to revisit their standard form employment contracts to, for example, include specific circumstances in which an employee can be requested to take periods of unpaid leave, be required to work-from home or undergo a medical examination. Employers may also want to consider extending probation periods for new hires, where local law permits such extensions. At least in Beijing, courts will not accept any extension of probation period regardless of the impact of the pandemic, even if the employee agrees to the extension.
Ahead of employees returning to the workplace and the resumption of normal operations, employers may also want to take the opportunity to update or revise employee policies. For example, employers may want to consider whether clarifications are needed to annual leave policies where it is possible that employees may return to the workplace with large amounts of accrued but unused annual leave because of the COVID-19 lock-down.
How to handle business travel
In addition to annual leave policies, employers may need to make changes to travel policies to put greater controls and protections in place for employees asked to travel for work to attend client meetings etc. In general, employers will have to carefully balance the need to meet client demands with their obligations to ensure the safety of their employees. For example, employers may temporarily suspend business travel to and from particularly high-risk jurisdictions or regions, while keeping those decisions under review in light of business need and perceived risks. Where the travel is necessary, before planning or approving any trip, it is advisable for an employer to check the self-reporting and quarantine measures applied in the destination and home city to assess whether it would result in involuntary data disclosure or self-isolation, and to make sure that the employee is fully informed of the risks and has consented to such an arrangement. But if an employee refuses to travel due to COVID-19 infection fears, possible subsequent isolations, the need to stay with children while the schools are closed or other justifiable reasons, it may be sensible to support the employee and explore the use of technology instead.
Careful preparation will be needed in order to execute a safe and successful return of staff to the workplace. Employers should take a holistic approach to the planning of workplace reintegration; methodically considering and challenging each proposal and policy to avoid unexpected pitfalls.