In this guide, we set out our answers to some of the key employment law-related questions we have been asked (and to some that we have not yet been asked) by employers in a number of key jurisdictions around the globe in relation to the coronavirus disease 2019 (COVID-19), commonly known as the “coronavirus”.
Contents
Australia....................................................................................................2 Belgium.....................................................................................................4 China.........................................................................................................5 France.......................................................................................................7 Germany...................................................................................................9 Italy.......................................................................................................... 12 Malaysia.................................................................................................. 14 Netherlands............................................................................................ 16 Russia...................................................................................................... 18 Singapore...............................................................................................20 Spain....................................................................................................... 24 UAE.........................................................................................................26 UK............................................................................................................29 US............................................................................................................ 31 Contacts.....................................................................................................................33
In this guide, we set out our answers to some of the key employment law-related questions we have been asked (and to some that we have not yet been asked) by employers in a number of key jurisdictions around the globe in relation to the coronavirus disease 2019 (COVID-19), commonly known as the "coronavirus". You will see that, broadly speaking, the lack of knowledge about coronavirus and the speed of its spread has left employers facing similar questions and arriving at similar conclusions, wherever they are based in the world. In Europe, much of the background law is similar, but there are still some key differences around employee rights, and these are highlighted below. We are conscious that the situation is changing very rapidly and we are, therefore, updating the information in this guide as soon as we become aware of changes to legislation/guidance/best practices in particular countries. At the top of each country report, we indicate when the report was last updated. We recommend that you always check the latest position with your local firm labour and employment lawyer. But in whatever country you are dealing with, remember three things: 1) this is not just a legal issue, but also a very human one; 2) these are unprecedented times in recent history; and 3) for both those reasons, a considered and proportionate approach to employee issues will almost always lead to a better outcome than knee-jerk over-reactions or blind compliance with the law, regardless of your actual circumstances. In addition, keep in mind that the coronavirus has potential repercussions for businesses well beyond the bounds of employment law for example, in relation to commercial terms, data protection and privacy, use of technology, etc. and, therefore, this guidance cannot be read in isolation. Disclaimer/Copyright This guide has been prepared for information purposes only and should not be regarded as a substitute for legal advice. Prepared by Squire Patton Boggs, 12 March 2020. Readers are advised to check the information at the time of use.
1
Australia
Last updated: 12 March 2020
What are an employer's health and safety obligations in relation to its staff?
Should employers place restrictions on work-related international travel? In what circumstances are employees required to selfisolate?
Do employers have to pay an employee if they self-isolate?
Employers have a statutory duty to ensure the health and safety of their workers, so far as is reasonably practicable. This involves taking reasonable steps to eliminate or minimise hazards and risks to health and safety in the workplace. What this duty requires in the context of the virus will vary depending on the nature of an employer's business and the workplace. Employers should carry out a risk assessment and then implement reasonably practicable control measures to mitigate the COVID-19 hazard.
Employers should monitor employee health, require employees to inform them if they contract or come into close contact with the virus, require unwell employees to stay at home and provide a medical certificate prior to their return, and inform employees about taking hygiene and precautionary measures. Employers should also keep up to date with government travel and health advice, review and update relevant policies (e.g. safety and travel policies) to ensure they are appropriate and flexible to meet changing circumstances, have an appropriate crisis response plan in place, and clearly communicate developments and policy changes to employees.
Employers should keep abreast of and follow the Australian government's travel advice (available here). Employers should consider whether work-related international travel to areas considered high risk or moderate risk is absolutely necessary. We recommend considering if alternative arrangements (e.g. holding meetings via video conference) can be arranged.
The position is changing quickly, so employers should always check the latest advice from the Australian government (see the Department of Health advice available here). Based on current advice, employers should require employees who have returned from high-risk areas (currently China, Iran, Italy and South Korea) and individuals who think they may have been in close contact with a confirmed case of the virus to stay at home from work and isolate themselves for 14 days (and seek medical advice if they develop symptoms such as a fever, cough or sore throat). If an employee is identified as having had close contact with a confirmed case of the virus, they will be contacted daily by a representative of the local public health unit to monitor their symptoms.
This depends on the circumstances. Employees (other than casual employees) are entitled to access their paid personal leave entitlement under the Fair Work Act 2009 (Cth) (FW Act) if they contract the virus, or are required to care for a family member who is unwell or because of an unexpected emergency (such as a school closure).
There are no specific FW Act provisions addressing a situation where employees are required to be quarantined. Employers could consider providing employees with access to their paid sick leave, annual leave or other leave entitlements (such as long service leave or other leave available under a modern award, enterprise agreement or employment contract), arranging for alternative paid or unpaid leave by agreement, or implementing flexible working or remote working arrangements.
If employers direct employees to take annual leave, they must ensure the direction is reasonable and complies with the terms of any applicable modern award, enterprise agreement or employment contract.
Employers should review their policies and contracts concerning sick leave and implement a consistent approach if offering additional paid or unpaid leave in excess of statutory entitlements.
If employees are required to or offered the option of working from home, employers should ensure they are able to comply with their safety duties and monitor productivity. We would recommend employers review their remote working policies and ensure they require the use of appropriate home workstations and comply with relevant company procedures if using personal devices for work.
2
How should employers deal with members of staff who refuse to come to work because they are concerned about the risk of infection?
If staff say they want to wear facemasks at work, are employers entitled to say no?
What should employers do if a member of staff is confirmed as having the virus and has recently been in the workplace?
If the situation worsens and employers are considering closing one of their sites, do employers have a right to lay off staff in these circumstances? Are employers obliged to continue to pay staff?
Key websites/sources of guidance
Given the current threat level in Australia, if there have been no cases of the virus in a workplace, it is unlikely to be reasonable for an employee to refuse to attend work solely due to fear of infection. Employees must request to work from home (if possible) or access some form of leave entitlement.
However, employers should take steps to understand the employee's concerns and assess the reasonableness of their refusal before taking any disciplinary action.
Advice from the Department of Health (available here) is that facemasks are not currently recommended for use by healthy members of the public. Employers should consider this on a case-by-case basis, while ensuring they implement consistent requirements with regard to the wearing of facemasks.
Wearing facemasks to work risks suggesting that the employee is unwell, which may lead to difficulties in their interactions with clients and colleagues. However, employers should be wary of imposing on employees' personal choices. Further, allowing employees to wear facemasks may reduce the number of employees who may otherwise refuse to attend work.
This will depend on the nature of the employer's workplace and the circumstances in which the employee has been affected.
Employers should direct the infected employee to stay at home from work (accessing their personal leave entitlements where available) until medically cleared to return to work. We also recommend the employer contact its local health authority for guidance as soon as possible after becoming aware of the situation.
As a minimum, employers should consider implementing additional hygiene practices in the workplace as an added precaution.
Employers may be required (or consider it prudent) to send home employees who may have come into contact with the virus, or shut down the workplace as a whole, for the required "self-isolation" period (see our above recommendations on this issue). This will depend on the circumstances and current government advice.
In all circumstances, employers should keep employees informed about the situation.
As this is a complex area, we recommend employers take specific advice on this issue.
Subject to the terms of an applicable employment contract, modern award or enterprise agreement, an employer may be able to order employees to temporarily stay at home from work without pay, under the FW Act's stand-down provisions. These provisions may be engaged if the virus directly or indirectly causes a "stoppage of work" that the employer cannot reasonably be held responsible for. Employers can only enforce an unpaid stand-down where employees cannot be usefully employed and the employer is not able to "obtain some benefit or value for work" from them. Accordingly, prior to implementing a stand-down, employers must determine whether there is any alternative work employees could usefully perform within the business, as well as consider the terms of their employment contracts and any applicable awards or enterprise agreements.
If an employer no longer requires an employee to perform their role because of worsening conditions, this may trigger redundancy obligations.
The Department of Health's COVID-19 health alert (updated daily) is available here and their information sheet for employers is available here.
Information from the Department of Home Affairs regarding travel restrictions and advice is available here.
Information published by the Fair Work Ombudsman is available here.
3
Belgium
Last updated: 12 March 2020
What are an employer's health and safety obligations in relation to its staff?
Should employers place restrictions on work-related international travel? In what circumstances are employees required to selfisolate?
Do employers have to pay an employee if they self-isolate?
How should employers deal with members of staff who refuse to come to work because they are concerned about the risk of infection? If staff say they want to wear facemasks at work, are employers entitled to say no? What should employers do if a member of staff is confirmed as having the virus and has recently been in the workplace? If the situation worsens and employers are considering closing one of their sites, do employers have a right to lay off staff in these circumstances? Are employers obliged to continue to pay staff?
Key websites/sources of guidance
Same as in the UK.
In addition, the government has made the following recommendations: Give employees the possibility of working from home Postpone meetings or organise them remotely, e.g. via videoconference Postpone staff or company parties for the time being Keep a distance on the work floor If possible, allow flexible working, that way, fewer people are present at work
(and on public transport) at the same time
Training in large groups is also not recommended.
The advice is to avoid all travel to high-risk areas and, more generally, to restrict travel, save in those circumstances where no alternative (such as videoconferencing) is available.
Although strictly speaking, an employer cannot ban an employee from coming to work if they are not displaying any symptoms, the employer has a duty to take preventative measures, which may include agreeing with employees to self-isolate and work from home if they may pose a threat to their colleagues because they have travelled to a high-risk area.
If the nature of the employee's job/role allows them to work from home, they will be entitled to their regular pay. If it does not, and the self-isolation is imposed by the authorities, the employee may be entitled to a state allowance for temporary force majeure. The government has announced increased allowances for those impacted by temporary unemployment. If homeworking is not a possibility, and selfisolation is a purely preventative measure imposed by the employer, the employee may be asked to take holiday or, alternatively, may have to be paid for any days of self-isolation.
A pragmatic approach is advised: If the nature of the employee's job/role allows them to work from home, this may be a solution, within reasonable limits. If homeworking is not an option, the employee may have to take paid or unpaid leave.
Same as in the UK.
Although the Belgian authorities have not communicated on this specific question, the recommendations made by the UK government may be considered to apply equally to Belgium as best practice.
Where an employer is temporarily unable (not simply as a preventative measure) to employ staff for reasons of force majeure, it may place its staff in temporary unemployment for reasons of force majeure, subject to compliance with certain formalities. During this period, the employees will, in principle, benefit from a state allowance. The employer that invokes force majeure must make an electronic declaration to the Unemployment Office as soon as possible. In addition, it must also submit a written application for recognition of the force majeure with a detailed explanation showing that the unemployment was caused by force majeure as a result of the coronavirus.
Since the situation is only temporary, a termination of the employment contract for force majeure is not in order, so a termination would entitle the employee to regular severance pay.
https://www.info-coronavirus.be/nl/
https://werk.belgie.be/nl/nieuws/ coronavirus-preventiemaatregelen-en-arbeidsrechtelijke-gevolgen
4
China
Last updated: 12 March 2020
What are an employer's health and safety obligations in relation to its staff?
Should employers place restrictions on work-related international travel?
In what circumstances are employees required to selfisolate?
Do employers have to pay an employee if they self-isolate?
How should employers deal with members of staff who refuse to come to work because they are concerned about the risk of infection?
Since a number of companies in China have resumed work, local government authorities have issued specific requirements and guidance from a health and safety perspective. Though the specific requirements vary among locations, in principle, the following actions are advisable:
Office Management
Develop and implement a contingency plan and a procedure for the reporting of employees who are infected or suspected to be infected by the coronavirus disease 2019 (COVID-19)
Disinfect offices, including, but not limited to, office areas, elevators, rest rooms, office equipment, vehicles and other areas where people may gather
Minimise people gathering in any workplace and, to the extent possible, encourage videoconferencing and telecommuting
Provide employees with appropriate janitorial and sanitation supplies upon the resumption of work (e.g. facial masks and disinfectant, where possible)
Inform employees of the latest government requirements and guidance
Health Status of Employees
An employer should survey all employees at work and maintain a health status log
Measure temperatures of all employees before office entry and deny the entry of any employee whose temperature exceeds the level set by the local authorities
Encourage employees to wear facial masks in the workplace
Transportation Management
Consider re-arranging employees' working hours to avoid travelling during peak hours
Remote working arrangements are also encouraged, where practicable
Given the 14-day self-quarantine requirement for persons visiting or returning from high-risk areas (including Korea, Italy, Iran and Japan, as of the date of this article), employers should consider avoiding employees' business travel to such areas, unless such travel is absolutely necessary and in compliance with any restrictions placed by the local authorities in China. In Shanghai, the local government has specified that business trips to high-risk areas are currently prohibited.
Employers should also check the immigration control measures taken by destination countries applicable to passengers from China with respect to COVID-19 (see the latest travel advice from the Consular Department of the Ministry of Foreign Affairs).
It is advisable that employers follow the requirements and guidance from the local government in this regard. Currently, a general nationwide practice is anyone who has travelled to high-risk countries or areas should report to the relevant authority, self-quarantine and stay away from work for 14 days, even if they have no symptoms. Such high-risk countries/areas include Hubei province, Korea, Italy, Iran and Japan, as may be updated from time to time.
Any employee who is infected by COVID-19, any employee suspected to be infected, any employee in close contact with such a person during an isolation or medical observation period, and any other employee unable to work as a result of the government's implementation of isolation measures or other emergency measures is entitled to normal salary payment during such period.
For any member of staff who refuses to come to work in relation to COVID-19, we recommend that an employer check with such employee for his/her specific concerns before taking any action. Where appropriate, alternative or flexible working arrangements should be explored to address such concerns. An employer should keep written records of the communication with such employee, including the actions that the employer has been taking to protect the health and safety of its staff.
Whereas an employer is required to provide necessary labour protection supplies to its employees under Chinese law, in principle, a facial mask is not considered a necessary labour protection supply for most jobs. Consequently, an employee may not lawfully refuse to come to work on the account of the employer being unable to provide facial masks.
5
(con't)
What should employers do if a member of staff is confirmed as having the virus and has recently been in the workplace?
If the situation worsens and employers are considering closing one of their sites, do employers have a right to lay off staff in these circumstances? Are employers obliged to continue to pay staff?
Without a justifiable reason for being absent from work, an employer may take disciplinary action against such an employee based on the applicable laws and its company policies.
In such circumstance, an employer must report to the local disease prevention and control authority, identify people who have been in close contact with the individual, and take other necessary precautionary actions, including isolating and disinfecting the individual's workspace.
Depending on the particulars of the situation and the advice from the disease prevention and control authority, an employer may need to close the workplace.
Employees Under the Influence of COVID-19
The employer is prohibited from terminating any employee who is infected by COVID-19, any employee suspected to be infected, any employee in close contact with such a person during an isolation or medical observation period, and any other employee unable to work as a result of the government's implementation of isolation measures or other emergency measures in accordance with Articles 40 and 41 of the Employment Contract Law, which provisions deal with an employer's right to terminate unilaterally for a reason other than "cause".
In addition, in the event a labour contract expires during any such period, the employment contract must be extended until the expiration of the medical period, isolation period, medical observation period or the end of the isolation or emergency measures taken by the government.
Employers should also note that employees would be entitled to the reinstatement of employment or wrongful termination severance if the lay-off is held to be illegal. We recommend that employers take specific legal advice on this issue before implementing any lay-off.
Other Employees
Under the labour laws of mainland China, there are only limited bases on which an employer may unilaterally terminate an employee. In theory, an employer could rely on the "lay-off for economic reasons" provision in the Employment Contract Law for a unilateral termination, subject to the satisfaction of certain conditions and procedures in relation thereto. Nevertheless, the government authorities in China have encouraged employers to take actions (e.g. negotiation of a salary adjustment with employees) designed to maintain headcount, either in order to avoid a lay-off or to minimise the scale of any lay-off, which indicates that any such lay-off may be subject to scrutinised review by the labour arbitration institutions or courts, if disputes arise.
Can we adjust the employee's compensation in light of COVID-19?
In case of any difficulty in business operations as a result of COVID-19, an employer is encouraged to negotiate with employees to reach an agreement on salary adjustment, adjustment of position and rest days, or a reduction in work hours.
In case of shutdown, how should we pay the employees?
For any shutdown caused by circumstances related to COVID-19, employees must, within one salary payment cycle, be deemed to be working as normal and be entitled to their normal salary. If the shutdown period exceeds one salary payment cycle, for employees who actually work, their salary must at least be the local minimum salary; for employees who do not work, the employer must pay a subsidy to the employee, the standard of which is determined by the local government of each province. For example, in Shanghai, the subsidy must be no less than the local minimum salary standard; in some cities in Zhejiang, the subsidy standard is 80% of the local minimum salary.
6
France
Last updated: 12 March 2020
What are an employer's health and safety obligations in relation to its staff? Should employers place restrictions on work-related international travel? In what circumstances are employees required to selfisolate? Do employers have to pay an employee if they self-isolate?
How should employers deal with members of staff who refuse to come to work because they are concerned about the risk of infection?
If staff say they want to wear facemasks at work, are employers entitled to say no?
Under French law, employers are required to make their best efforts (obligation de moyens renforce). They should ensure they can demonstrate having implemented all reasonable preventative measures to ensure the safety and protect the physical and mental health of their employees.
In the event of an epidemic, employers may limit business trips for their employees; for instance, suspending all business trips to high-risk regions. Some companies have already done so.
If employees are returning from a trip to a high-risk region or have symptoms, they are strongly advised to call the local emergency medical service (SAMU 15), consult a doctor from the Regional Health Agency and remain confined away from work for 14 days (i.e. the incubation time of the virus).
If the employee is eligible for sick leave: Payment of Social Security daily benefits for employees who have been off work (sick leave noted by a doctor from the Regional Health Agency) for a maximum of 20 days.
The employer must pay an additional allowance in accordance with the law and any applicable collective bargaining agreement if the employee is on sick leave.
If the employee is not eligible for sick leave: May take paid annual leave to cover the period of confinement. Otherwise, the employer is not obliged to pay an employee who does not perform their employment contract without justification. This would be likely to cover an employee who had no symptoms, had not travelled recently to any recognised high-risk areas and where there were no circumstances of particular risk in the workplace, but who still chose to remain away from work.
In cases of serious and imminent danger: If the employee has legitimate reasons to believe that the situation presents a serious and imminent danger to their life or health, the employee may refuse to come to the workplace. The employer may not take any sanctions and must maintain pay.
The possibilities of using the right of withdrawal are limited if the employer has taken the necessary preventative and protective measures.
In the absence of serious and imminent danger: If the withdrawal right is obviously being abused, the employer may make a salary deduction for nonperformance of the employment contract. However, this situation does not constitute serious misconduct (faute grave), but possibly a real and serious cause for dismissal if the employee refuses to return to work despite appropriate warning and reassurance by the employer.
If an employee is at risk/infected: A ban would not be proportionate to the epidemic situation. In our view, employees who wish to do so should be allowed to wear a facemask. The employer must take all necessary actions to guarantee the health and safety of employees.
If an employee is not at risk/not infected: There is the ability to prohibit this based on the employer's power of management. In general, an employer may prohibit certain behaviour if: (i) the ban is justified and (ii) proportionate to the intended purpose. This would include, for example, causing fear to customers, potential impact on the company's image, impact on business relations with customers and propagation of an anxiety-provoking climate in the company.
7
What should employers do if a member of staff is confirmed as having the virus and has recently been in the workplace?
If the situation worsens and employers are considering closing one of their sites, do employers have a right to lay off staff in these circumstances? Are employers obliged to continue to pay staff?
What rights and obligations do employers have toward employees who need to take time off work because they have childcare responsibilities for a child whose school or nursery is closed due to the coronavirus?
Key websites/sources of guidance
Instruct the infected employee to consult a doctor at the Regional Health Agency and to stay home for 14 days (sick leave).
The employer can offer the employee the ability to work from home.
Make a list of employees who have been in contact with the infected employee, suggest homeworking and that they consult a doctor from the Regional Health Agency.
The employer can impose working from home if the risk of infection is confirmed within the company, but is not obliged to do so.
The employer must take appropriate measures to prevent the spread of the virus, ensure the health and safety of employees (e.g. distribution of masks, disinfectant gel, and hygiene and safety instructions to the employees, etc.). If closure of the workplace is not necessary, the employer should, as a minimum, take necessary steps to disinfect areas and equipment reasonably likely to have been used by the infected employee the French government has published guidance on how to proceed with this disinfection process.
Possible redundancy situation if permanent shutdown of the facility becomes necessary due to:
Economic difficulties (e.g. lower turnover, reduction in orders)
Technological changes
Reorganisation of the company if this is necessary to maintain its competitiveness
Termination of the company's activity
If a substantial number of employees are out of work because they are infected by the coronavirus and this leads to economic difficulties, this may be a ground for redundancy.
In the case of partial activity (where there is an impact but no permanent closure), employees who suffer a loss of salary either because of the temporary shutdown of the facility or because of a reduction in working hours are entitled to a specific allowance, which is provided by the state in respect of the relevant salary lost. Coronavirus has been declared by the French government as a case of force majeure.
If home working is not possible, an employee who has to look after a child can benefit from sick leave in these circumstances.
When a child under the age of 16 has to be kept at home due to the closure of their school, one of the parents may be granted paid sick leave when they cannot benefit from an arrangement in their working conditions allowing them to stay at home to look after the child.
The employer must declare the sick leave via the employer page of the Ameli website: https://declare.ameli.fr/.
The employer must ask the employee to complete a certificate in which they undertake to be the only parent requesting the benefit of sick leave in order to look after the child at home, indicating :
The name and age of the child
The name of the school and the district where the child is attending school
The period during which the school concerned is closed
The employee must also inform the employer as soon as the school reopens.
It should be noted that the employer must pay an additional allowance in accordance with the law and any applicable collective bargaining agreement if the employee is on sick leave.
If the employee resumes their activity before the end date of the indicated sick leave, the employer must inform the healthcare insurance fund (CPAM) in accordance with the usual procedure applicable to sick leave.
The French government has launched a website, updated daily, to inform French citizens, employers and their employees on the situation related to the coronavirus
8
Germany
Last updated: 12 March 2020
What are an employer's health and safety obligations in relation to its staff?
Should employers place restrictions on work-related international travel?
In what circumstances are employees required to selfisolate?
Do employers have to pay an employee if they self-isolate?
Employees should be informed about the risk of infection and on the protective measures they should take against the coronavirus. This is particularly true if the employer is aware of increased risks, e.g. if there are travellers to China or other high-risk areas amongst its staff.
The current risk assessment and further information on protective measures can be found on the website of the Robert Koch Institute.
Since this situation is unprecedented, it is currently unclear as to what exactly employers must do. The general principles of occupational health and safety apply.
Employers also have a duty of care to their staff and must do everything to ensure that their employees can work without danger. Therefore, all measures must be taken to ensure that employees are not infected at the workplace. This includes providing disinfectants and facemasks especially in the sanitary facilities and entrances to the company.
Where applicable, employers should also involve and seek the views of any elected works council in light of their co-determination rights.
If the employment contract contains an obligation for regular business trips, an instruction to travel is basically permitted. However, there are exceptions. If there is a travel warning from the Foreign Office for an entire country or a partial travel warning for a region, the trip can be refused by the employee.
It would be in the interest of most companies to reduce or refrain from travel to high-risk countries to keep the risks for their employees and operational processes as low as possible.
See the German Foreign Office website for the latest information on travel.
Sick employees normally receive an official sick note by a doctor that outlines the period during which the employee is unfit to work.
In cases of suspected infection, the public health authorities may order a ban.
Self-isolation should not be encouraged without advice from a doctor. Employees should visit a doctor or refer to the local branch of the public health department. An employee who self-isolates without medical advice (other than on the instruction of the employer) will not be entitled to be paid during that period.
Employees are obliged to report sick to the employer immediately. The type of illness does not usually have to be reported.
Because the coronavirus is a highly infectious and dangerous disease, the general duty of loyalty under labour law means that employees who are suffering from it should, and even must, exceptionally notify the type of illness, since only in this way can an employer take appropriate protective measures against the spread of the virus.
Sick employees normally receive continued payment of their wages by the employer for six weeks per sickness.
However, if there is only a suspicion or fear of infection, and the authorities order a ban on employment or a quarantine, they have no right to continued payment of wages. Instead, employees receive compensation from the state. Although the employer must pay this to staff, it will be reimbursed by the responsible health authority. This is laid down in the Protection Against Infection Act.
9
How should employers deal with a member of staff who refuses to come to work because they are concerned about the risk of infection?
If staff say they want to wear facemasks at work, are employers entitled to say no?
What should employers do if a member of staff is confirmed as having the virus and has recently been in the workplace?
Fear and concerns alone are not enough. If there is no concrete evidence of possible infection, employees must come to the office for the most part. An exception would be if an employer makes an agreement with its employees to work from home.
In cases where it is suspected that an employee is infected with the coronavirus and there is a concrete risk of infection, the employee may work from home. A unilateral instruction to work from home by the employer is not permitted; such measures must always be accepted by both parties, unless agreed otherwise. Employers may instruct employees to stay at home, but must release them from their work duties in cases of doubt.
If an employee refuses to attend work for fear of infection, even though there is no objective basis for fear of infection, employers may first give a warning and, if this happens again, dismiss the employee for conduct-related reasons.
Employers have a right to direct/issue instructions.
In order to prevent the coronavirus from spreading, it may, therefore, oblige employees to wear mouth protection and wash or disinfect their hands regularly or even avoid shaking hands. These instructions would be covered by the right of direction.
If there is a works council, the right of co-determination must be taken into account in implementing such measures. Before refusing an employee consent to wear a mask at work (see France), employers should have taken reasonable steps to persuade the employee of the disadvantages/pointlessness of doing so; but ultimately, such a refusal does fall within the employer's powers of direction.
Close co-operation with the public health department is strongly recommended.
Furthermore, protective measures should be taken for the rest of the workforce. If other employees report virus symptoms, such as fever, coughs, colds, etc., the employer should send them home and direct them to obtain a medical going one way or the other.
Data protection laws should not be forgotten. Collecting health data from employees, for example, by measuring possible fever when entering company premises, is not admissible without consent. The same applies to informing third parties (particularly other employees, clients and customers) of a possible infection. It remains to be seen how easily employers can reconcile their duties of confidentiality to the (potentially) infected employee with their duties to other colleagues who may have come into contact with them. The employer should refer to the public health department when in doubt.
10
If the situation worsens and employers are considering closing one of their sites, do employers have a right to lay off staff in these circumstances? Are employers obliged to continue to pay staff?
Key websites/sources of guidance
As to layoffs, there are two different situations. If a company closes down as a temporary precautionary measure to protect its employees, then the employer also bears the financial risk. The employees must still be paid.
The situation is different if the company is ordered to close down by the health authorities. Then, in turn, general state compensation regulations take effect.
In this case, no "forced vacation" has to be taken because if the employer closes the company on its own initiative, and the employee cannot come to work, then the employer is responsible. Employees do not have to take leave for this.
In order to motivate employers to retain their workforce despite reduced work opportunities and to avoid redundancies, the federal government has decided to change the current regulations on short-time working. Currently, if (at least) one third of the workforce is affected by lost working hours due to an unavoidable event, and any credit balances on working time accounts have been used up, employers can reduce the working hours of the affected employees (even down to zero) under certain conditions. The Employment Office then pays the affected employees shorttime work compensation.
The federal government now wants to facilitate and simplify these conditions for obtaining short-time work compensation. As soon as the reforms come into force (beginning/mid-April 2020), it will be sufficient for 10% of the workforce to be affected by the loss of working hours. It should also be possible to dispense with the need to use up working time accounts in whole or in part. Social security contributions, which, under the current regulations are also payable by the employer during short-time working, will also be covered by the Employment Office. These reforms will be introduced for a limited period of time (until the end of 2020) on the assumption that by then, the current crisis will be over.
Robert Koch Institute Risk Analysis: https://www.rki.de/DE/Content/InfAZ/N/ Neuartiges_Coronavirus/Risikobewertung.html
Robert Koch Institute FAQ: https://www.rki.de/SharedDocs/FAQ/NCOV2019/ FAQ_Liste.html
Foreign Ministry Travel Advice: https://www.auswaertiges-amt.de/de/ ReiseUndSicherheit/10.2.8Reisewarnungen
Federal Health Department: https://www.bundesgesundheitsministerium.de/
11
Italy
Last updated: 12 March 2020
What are an employer's health and safety obligations in relation to its staff?
Should employers place restrictions on work-related international travel?
Employers have a duty to ensure the health and safety of their employees and nonemployees (e.g. contractors, members of the public, etc.) so far as is reasonably practicable, considering the best standards and practice. This would include taking reasonable steps to control the spread of the coronavirus at sites under the control of the employer. Employers should carry out a risk assessment and then implement reasonably practicable control measures to either eliminate or mitigate the coronavirus hazard.
Ensure staff are aware of the symptoms and the latest advice on how to minimise the risk of infection.
Implement a reporting procedure for anyone with symptoms or who resides in high-risk areas. It is important to avoid any investigation, as the Italian Data Protection Authority has pointed out that employers must refrain from collecting data in a systematic and generalized way, also through specific requests to all employees or unauthorised investigations, information on any flu symptoms of the worker and their family/closest contacts.
Make individuals aware of the latest government guidance.
Ensure any control measures identified by the risk assessment are aligned with the government's advice.
Invite any employee to stay at home if they develop symptoms of a cough, fever or shortness of breath.
Implement all the legal obligations provided for by the recent legislative and ministerial decrees adopted day-by-day as "urgent measures". This includes immediately removing from work employees who have been required to selfisolate by the National Health Service.
Make the employees work remotely, if possible, considering their job role and business needs, by using "smart working" arrangements. According to Decree DPCM 1 March 2020, until 31 July 2020, it is not required to have the agreement of employees. Since all the national territory is considered, as of today 10 March 2020, and until 3 April 2020, an "orange alert zone", this is applicable in any Italian region/municipality. If the employee cannot work remotely, they could be stopped by police when moving from home to office. In this case, the employee must issue a declaration by self-certification that needs to move for actual work reasons. This declaration can be drafted using the form provided by the Ministry of Interior (website: https://www.interno.gov.it/it/speciali/coronavirus). Provide to employees who work remotely a health and safety (H&S) notice on the specific risks related to working out of the office: a specific form has been published on the National Insurance for Work Related Diseases and Injuries (INAIL) website.
Encourage the use of holidays by the employees, where possible.
Since 4 March 2020, flights to and from China have been cancelled.
Italian employees, when travelling from Italy, could be prevented from entering certain countries. In other areas, they could be required to self-isolate.
Business travel of employees, even inside Italy, must be reduced to the minimum as they are allowed only in case of "actual business needs". Meetings must be replaced, when possible, by conference calls/Skype meetings, etc.
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In what circumstances are employees required to self-isolate? Do employers have to pay an employee if they self-isolate?
How should employers deal with members of staff who refuse to come to work because they are concerned about the risk of infection? If staff say they want to wear facemasks at work, are employers entitled to say no?
What should employers do if a member of staff is confirmed as having the virus and has recently been in the workplace?
If the situation worsens and employers are considering closing one of their sites, do employers have a right to lay off staff in these circumstances? Are employers obliged to continue to pay staff?
Key websites/sources of guidance
Employees are required to self-isolate upon specific prescription by the National Health Service.
If an employee is actually unwell with the coronavirus, they should be entitled to sick leave and relevant pay.
If an employee self-isolates on the advice of the National Health Service, or as a result of an order of the public authorities, this is considered impossibility of performance or force majeure. Best practice would be to agree with the employee a period of paid leave.
If employees are absent from work out of fear of the risk of infection, they would not be entitled to their salary, and their absence could be considered unjustified (unless in specific circumstances, e.g. if the employer is not implementing the prescribed health and safety measures).
Employers can invite employees not to wear facemasks, provided they are only required to be worn by symptomatic individuals (as advised by a healthcare worker) to reduce the risk of transmitting infection to other people. It is debatable if the employer can prohibit the use of facemasks, except for some specific work activities where requests on the "dress code" could be considered appropriate.
Employers should consult the National Health Service, and must involve the Health and Safety functions (the person responsible for the preventative and protective service, RSPP, the doctor in charge, the workers' representative for safety at the workplace) to discuss any actions that should be taken (including, depending on the circumstances, sanitising the premises or temporary suspension of the activity in that workplace or specific areas).
Employers must first encourage the use of paid leave, provided by the applicable collective bargaining agreement or holidays.
In cases of suspension of business activity, the employer, if eligible under statutory provisions, may apply for the so-called CIG, i.e. a special national funded "shock absorber" that partially covers the payment of salary in cases of temporary lay-off, or FIS (funds provided by collective bargaining agreements).
The Italian government announced special laws to be enacted and funded specifically to support enterprises and workers' income.
Health Minister website: http://www.salute.gov.it/nuovocoronavirus
National Insurance for Work Related Diseases and Injuries (INAIL): https://www.inail. it/cs/internet/home.html
Council of Ministers website: http://www.governo.it/
13
Malaysia
Last updated: 12 March 2020
What are an employer's health and safety obligations in relation to its staff?
Should employers place restrictions on work-related international travel?
Employers are under a legal obligation towards their employees to ensure a safe and healthy workplace. This obligation is provided under common law, as well as under section 15 of the Occupational Safety and Health Act 1994 (OSHA). OSHA imposes an obligation on employers to formulate a health and safety policy at the workplace. A failure to comply with the obligations under the OSHA will constitute an offence that is potentially punishable with both a fine and imprisonment.
In view of the wide-ranging obligations from the health and safety standpoint, it is important for employers to devise a policy or action plan on measures that they will implement from the employment law standpoint to prevent, mitigate or deal with the coronavirus disease 2019 (COVID-19) outbreak.
In formulating such a policy, employers could take guidance from the "Alert, Enhanced Surveillance and Management of Avian Influenza in Human" (MH Guidelines), which were issued by the Ministry of Health in Malaysia in September 2004 in response to the Avian Influenza outbreak in the country. While dealing with a different epidemic, some of the steps recommended under the MH Guidelines for employers would still be applicable:
Instruct employees displaying symptoms of a cough or difficulties in breathing to undergo a medical examination immediately
Regular dissemination of virus-related health information and materials to all employees and visitors
Cooperate with the Ministry of Human Resources and the Ministry of Health, if needed, in the investigation of employees suspected to have the virus
Provide adequate facilities for employees to practice good personal hygiene, such as hand soap, clean water and alcohol-based hand rubs
Ensure that common areas, such as lifts, reception counters and door handles, are cleaned and disinfected regularly
Periodically review and update the work process related to health risk and comply with any directives related to the virus issued by the Ministry of Health or the Department of Occupational Safety and Health from time to time
Further, the Malaysian Ministry of Human Resources has issued Guidelines on Handling Issues Relating to Contagious Outbreaks Including Novel Coronavirus (MHR Guidelines). Although the MHR Guidelines do not prescribe any statutory obligations, employers are strongly encouraged to adhere to them. Under the MHR Guidelines, employers must ensure that employees returning from countries with material numbers of virus cases, such as China, Hong Kong, Japan and Singapore, undergo immediate medical examinations by registered medical practitioners on their return. The medical costs should be borne by the employer.
Malaysia has implemented an entry ban for foreign nationals who have visited certain areas in China, South Korea, Italy, Japan or Iran in the past 14 days. Since these are high-risk areas, it is advisable that any work-related travel to these areas should be deferred. Additionally, if employers send their workers to these locations, they may not be able to return to Malaysia. Given the circumstances, it is advisable to make use of videoconferencing/Skype facilities, as far as possible.
Employers should also be circumspect in sending employees abroad for work to countries or regions materially affected by the virus. An employer's duty to provide a safe system of work is a fluid obligation and if sending employees to affected countries would expose them to a significantly increased health risk, employers would potentially be in breach of that duty.
14
In what circumstances are employees required to self-isolate?
Do employers have to pay an employee if they self-isolate?
How should employers deal with members of staff who refuse to come to work because they are concerned about the risk of infection?
If staff say they want to wear facemasks at work, are employers entitled to say no?
What should employers do if a member of staff is confirmed as having the virus and has recently been in the workplace?
To mitigate the risk of infection, the Malaysian government issues quarantine orders to high-risk individuals. Unless an employee is on a quarantine order, she/he may attend work. However, if an employee takes ill or develops symptoms of COVID-19, the employer may instruct the employee to stay at home under paid sick leave.
It may be noted that where employees have received quarantine orders from registered medical practitioners, employers may consider them as on paid sick leave. Employers are also encouraged to provide extra remuneration to employees under a quarantine order exceeding their usual length of paid sick leave. Employees should not be compelled to utilise their annual leave entitlement or be made to go on unpaid leave during their quarantine period.
There is no legal provision around this issue, but employers ought to bear in mind that they cannot in law unilaterally place employees under unpaid leave on the sole basis that the employee is suspected to have contracted the virus. It is advisable to treat such leave as paid medical leave where the self-isolation is at the order of the authorities or the employer.
An employer should take steps to understand an employee's concerns before taking any action, especially if they may be at greater risk from developing the virus because of their age or underlying health issues.
Generally, if an employee is not on a quarantine order, there is unlikely to be a reasonable explanation why she/he cannot come to work. However, if there were a number of cases in their workplace and no obvious precautions or mitigating measures put in place by the employer, their refusal to attend may become more reasonable. For an employee's unreasonable refusal to attend/travel to an unsafe site, the employer may treat it as part of annual leave, or if annual leave has been exhausted, as unpaid leave.
We would recommend taking specific advice for this situation, as there may be risk exposure to the employer if the employee falls sick/gets infected at the premises. If that happens, she/he may be able to make a claim under the Work Injury Compensation Act or sue the employer for breach of its duty of care.
Generally, it is recommended that facemasks are only required to be worn by "symptomatic" individuals (as advised by a healthcare worker) to reduce the risk of transmitting the infection to other people. Similarly, the latest advice from the World Health Organization is that people only need to wear facemasks if they are treating someone who is infected with the virus.
If staff are concerned about contracting the virus, they should follow normal best practice about reducing the risk of infection (e.g. washing hands frequently, disposing of tissues, etc.). However, if an employee insists on wearing a facemask, unless there is a reasonable cause for not letting him/her do so, the employer should not ask him/her not to do so.
For redundancies resulting from impact on business, the employers will have to comply with the necessary retrenchment laws in Malaysia.
Employers can also consider alternate work arrangements or temporary reduction in salary. Employers cannot unilaterally reduce the salary of employees, so any such variation will have to be negotiated with the employees. However, employers who have collective agreements in place may seek for a variation of such contractual obligations under section 56 of the Industrial Relations Act 1967 by showing that there are "special circumstances" to warrant it.
15
Netherlands
Last updated: 12 March 2020
What are an employer's health and safety obligations in relation to its staff?
An employer has a statutory duty of care to provide employees with a safe and healthy working environment. For example, the employer must take reasonable steps to prevent its employees from coming into contact with infected visitors or colleagues. An employer must inform its employees about appropriate hygiene measures, other precautionary measures and what they should do if they are possibly infected with the virus. One precautionary step is to discourage employees from travelling to high-risk areas.
Should employers place restrictions on their staff in terms of work-related international travel?
This depends on the travel advice of the Dutch Ministry of Foreign Affairs. In the event of work-related international travel to an orange (only travel if necessary) or red (negative travel advice) risk area, it should be considered whether a telephone/video conference could be used instead.
In what circumstances are employees required to selfisolate/stay away from work?
We recommend that employers follow the advice of the government. Currently, it requests that individuals who may be infected by the virus should stay at home. If the employee's GP states that the employee must be in self-isolation and must stay away from work (e.g. because the employee is ill or a family member is infected), this advice must be followed. If there is no specific (medical) reason to stay away from work, the employee cannot simply choose to stay away from work.
Do employers have to pay an employee if they self-isolate?
This depends on the circumstances. If an employee refuses to work out of concern about getting infected, there is, in principle, no obligation for an employer to continue to pay them. If there is an acute risk of infection (e.g. in workplaces were there have been numerous cases of COVID-19 and no precautions taken by the employer, a family member is ill or the employee is requested to stay at home because they have symptoms), there is an obligation to continue to pay the employee.
How should employers deal with a member of staff who refuses to come to work because they are concerned about the risk of infection?
If the only reason for refusing to come to work is a fear of infection but there is no material risk of infection, the employer can decide not to continue to pay the wages during the period that the employee refuses to work. In this situation, the employer can also consider giving a warning to the employee. Under very specific circumstances, dismissal could be considered if the employee refuses to work without valid reasons.
If staff say they want to wear facemasks at work, are employers entitled to say no?
In principle, employers have the right to give instructions to their employees and employees must comply with these instructions. However, as a ban on wearing facemasks affects the private life of the employee, some boundaries must be taken into account: (1) instructions can only be given within the scope of the employment agreement and the instruction must be related to the position or activities of the employee; (2) instructions cannot be used by the employer if these are in conflict with mandatory law, such as fundamental rights (equal treatment) and antidiscrimination laws; and (3) the employer must act carefully when relying on its right to instruct (i.e. in applying the rule that facemasks are not allowed, it must satisfy the general requirement of acting as a good employer). This, for example, would mean that the instruction must be clear for employees and that the employer acts consistently.
The employer could make it clear that all reasonable security and safety measures are already being taken and that a facemask is unnecessary. In addition, the Dutch government only recommends facemasks for medical personnel, who have professional masks. These facemasks only help if they are used correctly. The "simple" facemasks that many people use, for example, do not protect against the virus and have been seen as unhelpful in leading wearers to touch their face more often in the process of adjusting them. This can be used to support an argument that employees should not wear facemasks in the workplace.
16
What should employers do if a member of staff is confirmed as having the virus and has recently been in the workplace? If the situation worsens and employers are considering closing one of their sites, do they have a right to lay off staff in these circumstances? Are they obliged to continue to pay them?
Key websites/sources of guidance
The employer must contact the Joint Health Service (GGD). The GGD will set out a protocol to be followed if the employee has had contact with other employees and there may be a risk of infection at the workplace.
If certain requirements are met, there is the possibility of submitting a request for a reduction of working hours to the Dutch Ministry of Social Affairs and Employment. During any reduction in working hours, the employees' wages remain the same: the hours worked are paid by the employer and the hours not worked are paid by means of an unemployment benefit.
The conditions that must be satisfied are:
1.The business must be affected by a special situation that does not fall within the normal entrepreneurial risk
2.The employer expects at least 20% less work for a minimum period of two weeks up to a maximum period of 24 weeks
The permit is valid for a maximum period of six weeks initially, but can be extended to up to 24 weeks. No reduction in working hours can be requested for on-call workers and temporary workers.
For lay off, the "normal" statutory rules for redundancy apply, namely that the employer must request prior approval from the government to terminate due to business and/or economic reasons and because re-deployment is not possible.
Please refer to the (regularly updated) instructions of the National Institute for Public Health and Environmental Protection (RIVM).
17
Russia
Last updated: 12 March 2020
What are an employer's health and safety obligations in relation to its staff?
An employer has a statutory duty of care to provide employees with a safe and healthy (working) environment. For example, the employer must take reasonable steps to ensure that its employees will not come into contact with infected colleagues. It must inform the employees about hygiene (e.g. washing hands with soap regularly) and other precautionary measures, and what they should do if they are possibly infected with the coronavirus. One likely precautionary measure is to:
Impose a temporary freeze on business trips to the countries indicated in the
list approved by Department of Federal Service for Supervision in the Area of Protection of Consumer Rights and Human Welfare (Rospotrebnadzor or RPN).
Discourage employees from travelling to a risk area and require notification to inform the employer if the employee has travelled to a risk area.
Implement hygiene rules in the employer's premises.
Also, at a regional level, decrees of the top officials have been adopted, such as the Edict of the Mayor of Moscow of March 5, 2020. This requires all employers operating within the Moscow city limits to:
Arrange for the workplace measurement of the employees' temperature and for the mandatory removal from the workplace of individuals exhibiting an elevated temperature.
Assist affected employees in complying with the self-isolation regime at home.
Upon receiving a request from the RPN, provide information on all work contacts of any individual who has been affected by the coronavirus in the course of performing work functions, and procure that the premises where the patient was present are disinfected.
Should employers place restrictions on their staff in terms of work-related international travel?
This depends on the travel advice of the RPN. Employers should consider whether the trip is absolutely necessary, especially if instead of actual travel, telephone or video conference meetings can be scheduled.
In what circumstances are employees required to selfisolate/stay away from work?
Under the Edict, it is an obligation of the employee to report to the Moscow hotline at +7 495 870 45 09 on their arrival from:
China
France;
South Korea
Germany
Italy
Spain
Iran
(The list can be amended by RPN and should be checked on a daily basis) and to self-isolate for 14 days from the day of arrival.
The RPN and the Edict advise that in cases of self-isolation, an individual should not visit the hospital; the employee needs to contact the doctor by phone, who will visit the employee at home. A courier will deliver the sick leave certificate to any employee who is under self-isolation.
Do employers have to pay an employee if they self-isolate?
The sick leave will be fully paid by the state on the basis of a sick leave certificate.
The amount is capped and depends on an employee's seniority. For 2020, the average daily amount of sick pay is capped at RUR 2,301.37.
If the sick leave allowance payable to an employee is less than the employee's average salary, the employer may (but is not obliged to) pay the difference between the statutory sick leave amount and the employee's average salary.
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How should employers deal with a member of staff who refuses to come to work because they are concerned about the risk of infection?
If staff say they want to wear facemasks at work, are employers entitled to say no? What should employers do if a member of staff is confirmed as having the virus and has recently been in the workplace?
If the situation worsens and employers are considering closing one of their sites, do they have a right to lay off staff in these circumstances? Are they obliged to continue to pay them?
Key websites/sources of guidance
If the fear of infection is the only reason for refusal (so there is no realistic risk of infection), and the absence from work is not supported by a medical sick leave certificate, the employer can decide not to pay wages during the period that the employee refuses to work. In this situation, the employer can also consider first giving a warning to the employee that this will be a likely consequence. Under very specific circumstances, dismissal can be a possible sanction when an employee refuses to attend work without good reason.
No.
If a member of staff is confirmed as having the virus, the regional division of RPN will contact the employer. The employer must, upon request from the RPN, provide information on all work contacts of an individual affected by the coronavirus, and procure that the premises where the patient was present are disinfected, and follow any further instructions provided by RPN.
With regard to lay off, it appears that the general rules of redundancy are applicable.
Under Article 72.2 of the Labour Code, in the event of a natural or man-made catastrophe, famine, earthquake, epidemic and in any extraordinary cases endangering the life or normal living conditions of the whole population or a part thereof, an employee may be transferred without their consent for up to one month to a job that is not stipulated by the employment contract to work for the same employer for the purpose of preventing such events or mitigating the effects thereof.
Where such a transfer takes place, the employee shall be paid for the work they perform at a rate not below the average earnings in their previous job.
https://rospotrebnadzor.ru
https://www.mos.ru
https://mosgorzdrav.ru/ru-RU/news/default/card/3581.html
19
Singapore
Last updated: 12 March 2020
What are an employer's health and safety obligations in relation to its staff?
Employers have a duty to ensure the health and safety of their employees and non-employees (e.g. contractors, members of the public, etc.) so far as reasonably practicable. This would include taking reasonable steps to control the spread of the coronavirus at sites under the control of the employer. Employers should carry out a risk assessment and then implement reasonably practicable control measures to either eliminate or mitigate the coronavirus hazard. From a practical perspective, we would recommend that employers:
Ensure staff are aware of the symptoms and the latest advice on how to minimise the risk of infection.
Implement a reporting procedure for anyone with symptoms.
Implement a reporting procedure for individuals who have recently visited highrisk areas, such as China, South Korea, Northern Italy, etc. This may mean that staff have to self-isolate if they have returned from a high-risk area (see below for further guidance).
Make individuals aware of the latest government guidance.
Ensure any control measures identified by the risk assessment are aligned with the government's advice.
Keep abreast of latest advisories from Ministry of Manpower (MOM) and Ministry of Health and ensure implementation.
Employees are under a legal obligation to cooperate with their employer and other duty holders to enable them to comply with health and safety legislation.
Should employers place restrictions on their staff in terms of work-related international travel?
As at 4 March 2020, the Ministry of Manpower (MOM) advised travellers to defer all travel to Hubei province (China) and to defer non-essential travel to mainland China, South Korea, Iran, Japan and Northern Italy. In light of this, employers should clearly avoid sending staff to affected areas for the foreseeable future for work-related purposes, where possible.
Further, new visitors with travel to mainland China, Iran, Northern Italy and South Korea within the last 14 days are not allowed entry to Singapore or transit through Singapore. As such, if employers send their workers to these locations, they may not be able to get back into Singapore. It is time to make use of videoconferencing/ Skype facilities, etc.
It is also worth noting that if an employee falls sick/gets infected due to work-related travel (especially where it was not strictly necessary), they may be able to make a claim under the Work Injury Compensation Act or sue the employer for breach of duty of care.
20
In what circumstances are employees required to selfisolate/stay away from work?
The Singapore government has a two-tier protection mechanism to minimise the risk of spreading the infection. Potentially infected individuals are either issued a quarantine order (QO) or a Stay at Home Notice (SHN).
An individual who is or is suspected to be a carrier of an infectious disease will be issued a QO, a legal order issued to individuals under the Infectious Diseases Act and, thus, with severe penalties for non-compliance. Currently, Singapore Citizens, Permanent Residents and work pass holders returning from Hubei province in China will be automatically quarantined.
All Singapore residents (Singapore Citizens and Permanent Residents) and long-term pass holders (including work passes, permits, Student's Pass, Dependant's Pass and Long-term Visit Pass) with travel to mainland China (outside of Hubei), Iran, Northern Italy or South Korea within the last 14 days will be put on a 14-day SHN.
Neither QO nor SHN are optional measures, and employers are required to follow the process. MOM has taken a very strict stance toward employers who failed to follow the QO and SHN requirements and, in some cases, have stripped away work pass privileges of employers in Singapore.
Besides the above, if an employee develops symptoms of a cough, fever or shortness of breath, however mild, the employer should require them to work from home until their position is clarified.
As a general rule, employers should not arbitrarily require staff to stay away from work. Taking any steps to force them to do so (even if under pressure from other members of staff) may amount to a breach of the implied term of trust and confidence. Employees may be willing to work from home for a period of time (the incubation period for the virus is estimated to be between two and 14 days), but employers should be very careful about how they approach such conversations so as not to put themselves at risk of a claim.
21
Do employers have to pay an employee if they self-isolate?
How should employers deal with a member of staff who refuses to come to work because they are concerned about the risk of infection?
There is no legal provision but the MOM has issued various advisories and guidelines.
If an employee is served with a QO by the MOM, the period of absence from work required by it should be treated as paid hospitalisation leave, as part of the employee's hospitalisation leave eligibility.
For employees on SHNs (because of recent travel to affected areas), and where working from home is not possible, employers are encouraged to provide additional paid leave on top of employees' annual leave entitlements (though this is not a strict legal obligation).
It may be noted that employers have duty to provide food and daily necessities for employees on SHN.
Employers can consider the following options, or a combination of them, for the employees:
Treat employees' leave of absence as paid hospitalization leave or paid outpatient sick leave.
Allow employees to use their annual leave.
Allow employees to use advanced paid leave or apply for unpaid leave where they have used up their leave entitlements.
Or other mutually agreed arrangements between the employers and employees/ unions.
Eligible employers who provide additional paid leave to their employees on SHN or treat the period of SHN as paid hospitalisation leave are able to apply for assistance under the SHN Support Programme introduced by the government to support businesses, along with foreign worker levy waiver for the SHN period. Under the programme, eligible employers receive US$100 daily per affected employee for the duration of the SHN imposed and these employers automatically qualify for levy waiver for affected foreign workers.
It would clearly be best practice to pay employees their normal pay in these circumstances, and we note that some large employers have already adopted this approach, not least because otherwise employees may try to come into work, putting others at risk. We would, however, recommend that employers take specific advice on this issue before agreeing to anything, as there may be circumstances where it is not appropriate to adopt/continue with this approach. It may also lead to "copycat" absences once employees are aware that company policy is that they will be paid as normal when absent due to self-isolation.
If an employee is able to work from home, this makes things simpler, as the employer should allow this and continue to pay the employee as normal. We recognise that this will not be practicable for all employees.
An employer should take steps to understand an employee's concerns before taking any action, especially if they may be at greater risk from developing the coronavirus or more likely to be seriously affected by it.
If an employee reasonably refuses to attend/travel to an unsafe site, the employer may treat it as part of annual leave or if annual leave has been exhausted, as unpaid leave. A site may be seen as unsafe if there have been a number of cases of coronavirus at it and/or if the employer is not carrying out any visible, preventative or precautionary measures against it. Where there is no particular reason to see a site as unsafe, then the absence may be treated as unauthorised.
We would recommend taking specific advice for this situation, as there may be risk exposure to the employer if the employee falls sick/gets infected at the premises. If that happens, they may be able to make a claim under the Work Injury Compensation Act or sue the employer for breach of duty of care.
22
If staff say they want to wear facemasks at work, are employers entitled to say no?
If the situation worsens and employers are considering closing one of their sites, do they have a right to lay off staff in these circumstances? Are they obliged to continue to pay them?
Key websites/sources of guidance
The current advice from the government is that employees are not recommended to wear facemasks to protect against the virus. It recommends that facemasks are only required to be worn by "symptomatic" individuals (as advised by a healthcare worker) to reduce the risk of transmitting the infection to other people. Similarly, the latest advice from the World Health Organization (WHO) is that people only need to wear facemasks if they are treating someone who is infected with the coronavirus.
If staff are concerned about contracting the virus, they should follow normal best practice about reducing the risk of infection, e.g. washing hands frequently, not touching their face, disposing of tissues, etc. However, if an employee insists on wearing mask, unless there is a reasonable cause for not letting them do it, the employee may wear the mask; the employer should not ask the workers not to do so.
While there is no restriction in making employees redundant in a situation where a business site is being closed, MOM encourages employers to carry out responsible retrenchment. The employer may consider reduced workdays or alternate work arrangements for employees. If that is not possible, it should strive to provide the longest possible retrenchment notice period. Certain categories of employees under the Employment Act may be able to claim retrenchment benefit. For other employees, although it is encouraged, it is not mandatory for an employer to pay retrenchment benefits.
Stay up to date with the latest guidance the situation is obviously changing quite quickly, so employers should ensure they stay up to date with the latest government guidance and advice from public health agencies. Links to key websites are provided below:
The government's guidance on business continuity planning: https://www. enterprisesg.gov.sg/-/media/esg/files/media-centre/media-releases/2020/jan-2020/ guide-on-business-continuity-planning-for-wuhan-coronavirus.pdf
This contains useful advice for employers to continue carrying on business while mitigating risk of exposure.
General advisory for workplaces and frontline workers in response to confirmed cases of local transmission of Coronavirus Disease 2019 in Singapore: https://www. mom.gov.sg/covid-19/general-advisory-for-workplaces-and-frontline-workers
General advisory for workplace measures in response to DORSCON Orange situation in Singapore: https://www.mom.gov.sg/covid-19/ general-advisory-for-workplace-measures
General advisory for employers if a confirmed or suspect case of COVID-19 is detected at the workplace: https://www.mom.gov.sg/covid-19/ general-advisory-for-confirmed-or-suspect-case
23
Spain
Last updated: 12 March 2020
What are an employer's health and safety obligations in relation to its staff?
Should employers place restrictions on work-related international travel?
In what circumstances are employees required to selfisolate?
Do employers have to pay an employee if they self-isolate?
How should employers deal with a member of staff who refuses to come to work because they are concerned about the risk of infection?
Employers have a duty to ensure the health and safety of their employees and other persons related to the company (e.g. clients, providers, etc.) against occupational risks. This would include taking reasonable steps to control the spread of the coronavirus at sites under the control of the employer.
Employees are under a legal obligation to cooperate with their employer and other duty holders to enable them to comply with health and safety legislation.
Yes, companies could place restrictions on business travel to high-risk areas.
The areas currently classified as areas with evidence of community transmission are China, South Korea, Japan, Singapore, Iran and Italy.
Having said that, the Spanish government, following WHO recommendations, has not implemented any restrictions on travel and international trade. It has prohibited direct flights between Spain and Italy from 11 March 2020 until 25 March 2020. As a precautionary measure, the Ministerio de Sanidad has also recommended NOT travelling to those areas unless strictly necessary.
Employers can require employees to telework if the measure is "rational", meaning that it is based on well-founded concerns about infection (employees who have been in contact with people suffering coronavirus or have been in high-risk areas) and the measure is limited in time (the incubation period lasts 14 days). The employer may be required to provide any additional supplies or equipment necessary to facilitate home working.
To ensure the protection of employees during such periods of isolation, according to the Royal Decree-Law 6/2020, during self-isolation periods, employees should be treated as if they are temporarily disabled as a result of an accident at work. During this time, the affected employee will have a right to relevant benefits under the terms and conditions established by the rules of the social security system and in accordance with the employer's sick pay policy.
As Spain is not currently considered a high-risk area, concerns about being infected would not usually justify being absent from work. The absence will be only justified if a medical service orders the employee to self-isolate.
Therefore, if an employee has not been isolated by an authorised body or at the request of the employer, e.g. after a business trip to a high-risk area, the absence would be unjustified and the employer could apply disciplinary measures. Nevertheless, the employer should take steps to understand an employee's concerns before taking any action.
In the undesirable event that coronavirus spreads such that there is real reason to suspect infection in the workplace and immediate legislative measures are not adopted, employees may invoke the risk to their health established in Article 21.2 of the Law on the Prevention of Occupational Risks to justify their absence for work.
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If staff say they want to wear facemasks at work, are employers entitled to say no?
What should employers do if a member of staff is confirmed as having the virus and has recently been in the workplace?
If the situation worsens and employers are considering closing one of their sites, do employers have a right to lay off staff in these circumstances? Are employers obliged to continue to pay staff?
Key websites/sources of guidance
According to the recommendations of the Ministerio de Sanidad, generally healthy people do not need to wear facemasks, so employers in the majority of circumstances can object to the wearing of them. They may agree to some flexibility on this in relation to the elderly or those with pre-existing conditions that put them at greater risk of harm than would normally apply.
If staff are concerned about contracting the virus, they should follow normal best practice about reducing the risk of infection, including washing hands frequently, etc.
In such circumstances, the employer, together with the External Prevention Service, must activate any protocol implemented in the company.
The Spanish government has not recommended closing workplaces, so the normal activities of the company must continue, but they should follow best practice guidance against the spread of the virus. This may include temporary suspension or transfer of staff during sanitisation, etc.
According to Article 47 of the Workers' Statute, employers can apply a temporary employment suspension (ERTE) or a reduction of working hours if economic, technical, organisation, productive or force majeure reasons are met. In this situation, the Labour Authority must agree that such a reason exists before the suspension commences.
The Labour Authority could include as force majeure absenteeism rates so high that they prevent the continuity of business, or decisions made by the Health Authority that advise the closure of the workplace for precautionary reasons.
Keep in mind that these are temporary measures that can only be maintained for as long as the risk situation lasts. So, if the company returns to normal activity, the measure must be deactivated.
Employers must follow the guidance published by the Ministerio de Trabajo y Economa Social
More updated information can be found on the official webpage of the Ministerio de Sanidad
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UAE
Last updated: 12 March 2020
What are an employer's health and safety obligations in relation to its staff?
Should employers place restrictions on work-related international travel?
Onshore employers have an obligation to provide workers "with adequate protection means against hazards of occupational injuries and diseases that may occur during the work". Employers in the DIFC and ADGM have a general duty to ensure the health, safety and welfare of their employees at work so far as is reasonably practicable.
These health and safety duties would extend to taking reasonable steps to control the spread of COVID-19 at sites under the control of the employer. Employers should, therefore, carry out a risk assessment and implement reasonably practicable control measures to either eliminate or mitigate the virus hazard. From a practical perspective, we would recommend that employers:
Ensure staff are aware of the symptoms and the latest advice on how to minimise the risk of infection.
Implement a reporting procedure for anyone with symptoms. Employees may be reluctant to self-report if they think that such reporting will adversely affect their pay or work. Therefore, you may wish to consider making some assurances to employees to encourage reporting.
Implement a reporting procedure for individuals who have recently visited highrisk areas, such as China, Northern Italy, Syria and Lebanon, etc., and update this list regularly, given the risk areas are constantly evolving. This may mean that staff have to self-isolate if they have returned from a high-risk area (see below for further guidance).
Make individuals aware of the latest government guidance.
Ensure any control measures identified by the risk assessment are aligned with the government's advice.
The UAE has suspended all flights to and from Iran until further notice and has banned its citizens from travelling to and from Thailand and Iran. There is a travel warning in place for travel to China. In addition, on 5 March 2020, the UAE Ministry of Health and Community Protection requested that all citizens and residents avoid all travel due to the virus outbreak.
The UAE has now implemented medical screening at Dubai airports, and individuals re-entering the country will be subject to thermal screening on their return. Depending on the origin of the flight, the individual may also be subject to additional control measures, such as filling out a medical declaration form and undergoing a nasal swab. In suspected cases of the virus, the individual will be quarantined until testing has ruled out the virus.
In light of the UAE government's requests to avoid travel, employers should consider limiting work-related travel to circumstances in which travel is essential, and should consider whether there are any alternatives available to travel (e.g. conducting meetings using video conferencing facilities, etc.). Employers should also clearly avoid sending employees to high-risk countries such as China, Iran, Italy and Lebanon, etc., for the foreseeable future.
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In what circumstances are employees required to self-isolate?
Do employers have to pay an employee if they self-isolate?
The UAE authorities have not yet issued any clear official guidelines on the circumstances in which an individual will be required to self-isolate. However, it appears that individuals will be required to self-isolate, or in some cases be quarantined, in the following circumstances:
Where they have tested positive to the virus
Where they have travelled to a high-risk country and they are displaying symptoms of the virus but a diagnosis has not yet been confirmed
Where they have been in contact with someone diagnosed with the virus but a diagnosis has not yet been confirmed
As a general rule, therefore, employers should not require staff to stay away from work without their consent simply because they have travelled to particular countries. In the DIFC and the ADGM, taking any steps to force them to do so (even if under pressure from other members of staff) may amount to a breach of the implied term of trust and confidence.
Employees may be willing to work from home for a period of time (the incubation period for the virus is estimated to be between two and 14 days), but employers should be careful about how they approach such conversations so as not to put themselves at risk of a claim. However, the situation is changing quickly. Employers should ensure they closely monitor developments and that they stay up to date with any government guidance or advice from public health authorities on self-isolation.
Clearly, if a member of staff is actually unwell with the virus, you should pay them in accordance with your usual sick pay/leave arrangements. The position becomes less clear if they are self-isolating in line with the latest government guidance, but are not (outwardly, at any rate) actually unwell. Employers should obviously check their own policies/ contracts concerning sick pay, but it would be unusual for employees to have a contractual right to pay/sick pay in these circumstances. Some employers may choose to treat such periods of absence as sickness for their own company sick pay purposes.
It would clearly be best practice to pay employees their normal pay in these circumstances, or to treat this period as sick leave, and we note that some large employers have already adopted this approach, not least because otherwise employees may try to come into work, putting others at risk. We would, however, recommend that employers take specific advice on this issue and each particular case before agreeing to anything, as there may be circumstances where it is not appropriate to adopt/continue with this approach. For example, it may not be appropriate to provide normal pay in circumstances where the employee has travelled to a high-risk area ignoring government guidance or a travel ban without a reasonable excuse. It may also lead to "copycat" absences, once employees are aware that company policy is that they will be paid as normal when absent due to self-isolation.
If an employee is able to work from home, this makes things simpler, as the employer could do this and continue to pay the employee as normal. However, this may not be practicable for all employees due to the nature of their roles or their personal circumstances. Employers should also be aware that from a strict legal perspective, employees can only work from the employer's premises due to strict immigration requirements. However, given the current situation, and the UAE government's efforts to contain the spread of the virus, the authorities are unlikely to take issue with such working from home arrangements.
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How should employers deal with a member of staff who refuses to come to work because they are concerned about the risk of infection?
What should employers do if a member of staff is confirmed as having the virus and has recently been in the workplace?
If the situation worsens and employers are considering closing one of their sites, do they have a right to lay off staff in these circumstances? Are they obliged to continue to pay them?
In light of the current threat level in the UAE, it is unlikely to be reasonable for an employee to refuse to come to work on this basis, especially if there have been no cases in their specific workplace, and such a refusal would likely constitute an unauthorised absence. Clearly, however, employers need to take a practical approach and should take steps to understand an employee's concerns before taking any action, especially if they may be at greater risk from developing the virus. In light of the current media coverage of the virus, it is not surprising that some individuals are worried about contracting the virus and are keen to take steps to minimise the risk of infection.
If you are communicating with your staff about the virus and what steps the company is taking to protect the health and safety of its staff, the risk of employees refusing to come to work is likely to be reduced. If there is some basis for their concerns, you may want to think about allowing them to work from home for a period of time, taking some annual/unpaid leave, etc. It might also be useful to remind employees of other support services you have in place, such as employee assistance programmes and wellbeing programmes
In this case, the current government guidance is to immediately report the incident to the Dubai Health Authority (800 342), Estijaba service at the Operation Centre of the Department of Health (800 1717) and the Ministry of Health and Prevention (800 1111). Employers should also take immediate steps to contain the spread and to ascertain those individuals who have been in contact with the infected individual.
There is no right to lay off employees without pay in these circumstances. Any period of unpaid leave would need to be agreed with the employees. Onshore employers will also need to ensure that any agreed periods of unpaid leave are properly notified to the authorities to avoid any sanctions for breach of the wage protection system.
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UK
Last updated: 12 March 2020
What are an employer's health and safety obligations in relation to its staff?
Should employers place restrictions on work-related international travel?
In what circumstances are employees required to selfisolate? Do employers have to pay an employee if they self-isolate?
Employers have a duty to ensure the health and safety of their employees and nonemployees (e.g. contractors, members of the public, etc.) so far as is reasonably practicable. This would include taking reasonable steps to control the spread of the coronavirus at sites under the control of the employer. Employers should carry out a risk assessment and then implement reasonably practicable control measures to mitigate the coronavirus hazard. An employer following any government or Chief Medical Officer guidance on such measures is unlikely to face legal criticism even if they prove ineffective. Employees are also under a duty to co-operate with measures taken by the employer to satisfy its own obligations and can, therefore, be directed to take such reasonable steps to protect themselves and others as the employer instructs.
Most UK employers have already placed restrictions on work-related travel, whether national or international. Employers should continue to monitor the latest travel advice from the Foreign & Commonwealth Office (FCO).
The Home Office has published guidance on immigration provisions for individuals affected by travel restrictions associated with coronavirus, including details of a dedicated Home Office coronavirus immigration helpline. The guidance was last updated on 27 February 2020, and only refers to Chinese nationals present in the UK with expiring visas, or non-Chinese/non-EEA nationals in the UK normally resident in China. The provisions allow for those nationalities, if their visas are expiring, to have their stay in the UK extended, for now, until 31 March 2020. It is envisaged that the guidance will be updated shortly to cover additional nationalities as, separately, the Home Office is currently advising travellers returning from four high-risk countries/ areas to self-isolate (even if asymptomatic) and from 13 countries/areas to selfisolate if they develop symptoms. This may prevent some UK visa holders from either extending their UK visas or leaving the UK before the expiry of their visas.
If you have any questions about the coronavirus and how it might affect your employees' immigration status, please speak to your usual contact in the UK Business Immigration team.
The position is changing quickly, so employers should always check the latest advice from the UK government.
Clearly, if a member of staff is actually unwell with the coronavirus, employers should pay them in accordance with their usual sick pay/leave arrangements.
In the Budget, the government confirmed that it will temporarily extend statutory sick pay (SSP) to cover individuals who are unable to work because they have been advised to self-isolate and those individuals who are caring for people within their own household who are displaying symptoms and have been told to self-isolate.
The government has also issued guidance to employers advising them to use their discretion not to require a GP Fit Note for coronavirus-related absences. Apparently, it will be introducing a temporary alternative to the Fit Note, which can be used for the duration of the coronavirus outbreak.
Employers should obviously check their own policies/contracts concerning sick pay.
It would be best practice for employers to pay employees their normal pay if they are self-isolating, not least because otherwise, employees may try to come into work, potentially putting others at risk.
If employees are able to work from home, employers should facilitate this and continue to pay them as normal. This will become increasingly relevant as more cases of coronavirus are detected in the UK.
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How should employers deal with a member of staff who refuses to come to work because they are concerned about the risk of infection? If staff say they want to wear facemasks at work, are employers entitled to say no?
What should employers do if a member of staff is confirmed as having the virus and has recently been in the workplace?
If the situation worsens and employers are considering closing one of their sites, do employers have a right to lay off staff in these circumstances? Are employers obliged to continue to pay staff?
Key websites/sources of guidance
It is unlikely to be reasonable for an employee to refuse to come to work on this basis, especially if there have been no cases in their specific workplace. Clearly, however, an employer should take steps to understand an employee's concerns before taking any action, especially if they may be at greater risk from developing the coronavirus through their age, pre-existing health conditions, etc.
The advice from the government is that employees are not recommended to wear facemasks to protect against the virus. It recommends that facemasks are only required to be worn by "symptomatic" individuals (as advised by a healthcare worker) to reduce the risk of transmitting the infection to other people. Similarly, the latest advice from the World Health Organization (WHO) is that people only need to wear facemasks if they are treating someone who is infected with the coronavirus. Wearing the mask risks suggesting that the person has the virus rather than is trying to protect against it. That may lead to difficulties in their interactions with clients and colleagues, but that is to some extent their choice, and allowing the wearing of masks may reduce the number of people who may otherwise decline to attend work.
The advice from the government is that in such circumstances, employers should contact the Public Health England local health protection team to discuss the situation, identify people who have been in contact with the individual and discuss any actions or precautions that should be taken. A risk assessment will be undertaken by the health protection team and advice to the company will be based on this assessment.
The government says that closure of the workplace is not recommended. A "deepclean" of the areas most likely to have been affected will be a reassuring step to other employees. If staff are sent home for any period to facilitate that, they should be paid as normal.
In certain sectors, employees' contracts of employment or collective agreements may contain "layoff" provisions, which give employers a contractual right not to provide employees with work for a short period of time, usually as a way of avoiding redundancies. Employees can be laid off without pay where there is a contractual term to this effect, but they may be entitled to a statutory guarantee payment from the employer.
Employers may be able to rely on these provisions in certain circumstances, but as employees may bring claims if layoffs are not handled correctly, we recommend that employers take specific advice on this issue before requiring staff to stay away from work, especially if they wish to be able to do so without paying them. A reduction in hours (or pay) without such a term and without employee consent will risk claims for breach of contract, unlawful deductions and constructive dismissal.
The government's guidance for employers and businesses: this contains useful advice for employers in providing advice to staff on the virus, what to do if someone with the virus has been in a workplace setting, etc.
Acas has published guidance for employers on what they should do to protect the health and safety of their staff
The latest travel advice from the Foreign & Commonwealth Office (FCO)
The latest advice from the National Health Service (NHS)
Please note that the position may differ slightly for Scotland, Wales and Northern Ireland.
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US
Last updated: 12 March 2020
What are an employer's health and safety obligations in relation to its staff?
Should employers place restrictions on work-related international travel?
In what circumstances are employees required to selfisolate?
Do employers have to pay an employee if they self-isolate?
Under federal law (the Occupational Safety and Health Act, or "OSHA"), employers have a general duty to provide a safe and healthy workplace for their employees. Most US states have analogous state laws requiring employers to provide employees with a safe working environment. The Occupational Safety and Health Administration has issued guidance to employers to protect workers during a pandemic. See https://www.osha.gov/Publications/OSHAFS-3747.pdf. Per OSHA, best practices include providing a clean and hygienic workplace (e.g., disinfecting surfaces, providing disposable tissues, alcohol-based hand sanitizers, cleaning agents, and antiseptic wipes, having soap available for regular handwashing, encouraging regular handwashing, increasing the frequency of surface cleaning, encouraging sick or symptomatic employees to stay home, urging social distancing strategies, and providing and sterilizing personal protective equipment) and trying to minimize the spread of contagious illnesses. Employers may have duties to comply with protected leave of absence laws, which vary significantly by state, but even if state law does not require paid sick leave or medical absence protection, prudence suggests allowing employees time away from work when they are ill or recently have been exposed to the virus in order to reduce the spread of the virus. Reducing nonessential business travel in all respects, and particularly to highly affected regions, is also recommended.
Nonessential business travel should be postponed until the virus is better controlled, particularly international travel. Whenever possible, phone and videoconferences should substitute. Employers should regularly review the U.S. Centers for Disease Control (CDC) travel alert page (https://www.cdc.gov/coronavirus/2019-ncov/ travelers/index.html) for updates on high risk assessment and precautions for travellers arriving in the U.S. from high risk countries. On 11 March 2020, President Trump issued a presidential proclamation expanding travel bans already in place (affecting People's Republic of China (excluding Hong Kong, Macau and Taiwan) and Iran) to also prevent entry of immigrants and non-immigrants into the US if they were physically present in any of 26 enumerated European countries (the Europe Schengen Area) for at least 30 days beginning at midnight on Friday 13 March 2020. However, this ban does not apply to American citizens or legal permanent residents of the US and their close family members and certain specifically described foreign nationals.
There are no generally applicable requirements for self-isolation under federal law; however, employers may take appropriate protective measures when employees present a direct threat to the safety of themselves or others. Whether that exception would apply where an employee presents a confirmed case of coronavirus has not yet been determined, but there is presently no requirement that employees who have been exposed or are symptomatic be removed from the workplace. If quarantine measures are implemented as a public safety step, the result may differ. Certain industries also have ethical or regulatory compliance requirements, particularly in the healthcare, child care, education, and mortuary services industries.
If employees elect to be absent of their own volition, the employer need not pay non-exempt workers for the missed work time and the employer's policies on reporting absences apply. However, employees who are salaried-exempt under the Fair Labor Standards Act ordinarily must be paid their full weekly salary if they work any portion of the workweek, barring their use of bona fide sick time. If employees miss work due to their own illness or after exposure, they may be entitled to paid sick leave under state law (which laws vary significantly by state) or under their employer's paid sick leave plan, if applicable. Once employees' paid time off banks have been exhausted, employers may still have obligations to provide unpaid time off as an accommodation of a disability or under the federal Family and Medical Leave Act (FMLA) or analogous state law.
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How should employers deal with a member of staff who refuses to come to work because they are concerned about the risk of infection?
If staff say they want to wear facemasks at work, are employers entitled to say no?
What should employers do if a member of staff is confirmed as having the virus and has recently been in the workplace?
If the situation worsens and employers are considering closing one of their sites, do employers have a right to lay off staff in these circumstances? Are employers obliged to continue to pay staff?
Key websites/sources of guidance
If the employee refuses to work but has available paid time off and follows notice requirements to call out from work, the employee may be paid until such paid time off is exhausted. If the employee has exhausted paid leave time or fails to follow attendance procedures, they ordinarily may be discharged, absent an employment agreement or collective bargaining agreement to the contrary. That said, if there is significant concern about infection or exposure in the workplace and failure by the employer to take appropriate measures to contain the situation, employers should exercise caution before terminating employees who choose not to come to work until the situation is addressed.
An employer generally can require that employees remove facemasks if inconsistent with a dress or appearance code. However, if a mask is recommended by a physician as an accommodation of a bona fide disability and the employee requests a modification of the company policy to accommodate that disability, care must be taken before refusing the request, as the Americans with Disabilities Act (ADA) requires that employers reasonably accommodate their employees' disabilities unless doing so poses an undue burden.
There is no mandatory reporting requirement currently; however, if an employee contracted the virus in the course of employment, this is a reportable incident to OSHA. In the exercise of caution and prudence, however, and an application of the OSHA general duty clause, we recommend notifying employees that a confirmed infected individual has been in the workplace so that other employees who have been exposed can take appropriate steps to be tested if they develop symptoms or to choose to use paid time off to stay out of the work environment until appropriate sanitizing measures can be implemented. Employers with multiple locations or facilities are urged to be consistent in their communications and remedial steps after potential exposure in the workplace.
Barring an agreement or collective bargaining agreement to the contrary, employers may terminate or layoff at-will employees without further payment. However, if the layoff is substantial and results in an employer with 100 or more employees (i) closing a plant that affects 50 or more employees during any 30-day period, or (ii) (A) implementing a mass layoff of 500 or more employees or (B) 50-499 employees if that makes up at least 33% of the active workforce, the employer may have a duty to provide notice under the Worker Adjustment and Retraining Notification Act (WARN Act), both to employees and their representatives and to government officials. Some states have mini-WARN Acts with lower employee thresholds, so employers should confirm their notice obligations under federal and state law.
https:// w w w.cdc.gov/coronavirus/ 2019 - ncov/travelers/ index.html
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Contacts
Global Co-Heads
Caroline Noblet London T +44 207 655 1473 E [email protected]
Jill S. Kirila Columbus T +1 614 365 2772 E [email protected]
Australia
Bruno Di Girolami T +61 8 9429 7644 E [email protected]
John F. Oakes T+61 2 8248 7804 E [email protected]
Belgium
Marga Caproni T +322 627 76 20 E [email protected]
China
Laura Wang T +86 10 6589 3721 E [email protected]
France
Jean-Francois Rage T +33 1 5383 7581 E [email protected]
Germany
Martin Falke T +49 30 72616 8105 E [email protected]
Netherlands
In the Netherlands we seek assistance from Kennedy Van der Laan*
Soo-Ja Schijf T +31 20 5506 832 E [email protected]
* An independent and unconnected law firm
Russia
Irina Pavlovna Golovanova T +7 495 258 5253 E [email protected]
Singapore
Julia Yeo T +65 6922 8671 E [email protected]
Spain
Ignacio Regojo T +34 91 426 4804 E [email protected]
Italy
In Italy, we seek assistance from Trifir & Partners*
Valeria De Lucia T +39 02 55 00 11 E [email protected]
UAE
Sarah Lawrence T +971 4 447 8700 E [email protected]
US
Laura Lawless T +1 602 528 4137 E [email protected]
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37478/03/20
