In those jurisdictions where there has been a consistent decrease in the number of new infections, companies now contemplate asking their employees to return to the company’s premises to perform their duties. Indeed, in efforts to stop the spread of the pandemic and protect their employees, a lot of companies have implemented – among other measures – a “work-from-home” scheme for several weeks now. This alert outlines the lawful considerations that employers need to take into account when requesting their staff to return to the office while ensuring their protection in terms of health and safety. This is to avoid future claims from employees who may become infected by COVID-19 at the workplace resulting from a lack of preventative measures and failures by the employer to guarantee their safety.
Under Articles 229 and 230 of the Labour Law, employers have a duty to provide a safe working environment to their employees. Further, under Articles 742 and 743 of the Civil Code, if a person (including an employer) is deemed to have intentionally or negligently infringed the rights or benefits of another in violation of the law, including negligence to fulfill the duty of care owed to another person, such a person can be held liable for the payment of damages for any harm sustained as a result.
Employers should ensure that they strictly comply with the guidelines issued by all relevant authorities on the prevention of COVID-19, which include the following:
- immediately report to the competent authorities if employees have COVID-19 symptoms or suspected COVID-19 infection; and
- establish an Occupational Health and Safety (“OSH”) Committee or COVID-19 Committee in the workplace to regularly disseminate information, instruct employees on hygiene, especially preventative measures against COVID-19 on a daily or weekly basis until COVID-19 is no longer an issue, and monitor, investigate, record and ensure implementation of precautionary measures against COVID-19.
Employers may formally adopt employee COVID-19 testing measures as part of their health and safety rules to ensure the health and safety of all employees at the workplace. Such rules should include the applicable disciplinary actions in case of non-compliance and to promote their enforceability, such rules should be acknowledged and accepted by all employees in writing. The disciplinary steps should be in line with the provisions of the employees’ employment contracts, the employer’s internal work rules (if any) registered with the competent labour authority and other employer rules and policies.
Under Article 27 of the Labour Law, disciplinary action taken against an employee for failure to comply with work rules must be proportional to the magnitude of employee misconduct. Under Article 83 of the Labour Law, serious infractions of disciplinary, safety, and health regulations by an employee are considered to be serious misconduct.
The Lao PDR
The health and safety obligations of an employer arise primarily under the Labor Law (No. 46/NA, 24 December 2013) (“Labor Law”) and the Decree on Occupation Safety and Health (No. 22/GOV, 5 February 2019) (“OHS Decree”). Of relevance is that health and safety in the workplace is the joint responsibility of the employer and the employee. More specifically the employer is obligated to ensure a safe and healthy work environment. In turn, the employee is obligated to strictly comply with the health and safety regulations and directives of the employer as well as to cooperate and participate in health and safety activities.
In the context of the COVID-19 outbreak, the Lao authorities have been providing specific regulations detailing requirements for the opening up of premises in various industries and employers should familiarize themselves with their sector-specific requirements. Generally, obligations on the employer include: providing soap, gel, facemasks, etc. at no cost to employees; close monitoring of employees for symptoms associated with COVID-19 infection following which the applicable employee should be sent to a hospital for medical examination; and to arrange for temperature testing points and to provide hand cleansing gels to employees at the entrances to the workplaces, dormitories and dining rooms. Suspicious symptoms exhibited by any person, such as a fever, cough or difficulty breathing must be recorded and such persons must be sent to the quarantine room arranged by the employer before calling the 166, 165 hotline and to consult with a physician for an immediate health check.
Additional obligations will likely be forthcoming in regulations issued by relevant line ministries and the employer will need to keep abreast of these.
In accordance with the Factory Act 1951 and the Shop and Establishment Law 2016, employers in Myanmar must provide a safe and healthy workplace environment for their employees. In the context of the COVID-19 outbreak, the Ministry of Labour, Immigration and Population (“MOLIP”) has issued a number of measures and directives that employers in Myanmar must adhere to. In particular, pursuant to the Guidelines issued by the MOHS and Directive No.7/2020 issued by the MOLIP, employers must arrange for medical treatment in the event that an employee has a high temperature (38 C/100.4 F). Directive No. 8/2020 also requires 14 days’ of medical leave to be provided if an insured employee is unable to work as a result of quarantine conditions.
On a related note, companies established in Myanmar (including factories, construction sites and workshops) must comply with the guidelines issued by the Ministry of Health and Sports (“MOHS”) and have the following arrangements on the control and prevention of COVID-19, among others:
- Work from home arrangements (for pregnant employees and employees who can properly work from home);
- Physical distancing (for work places which cannot implement work-from-home methods);
- Directing the wearing of masks and gloves by all employees and providing adequate quantities of such personal equipment (“PPE”);
- Staff sickness control measures;
- Hygiene (in particular, regular hand washing should be promoted);
- Cleanliness and disinfection;
- Meal and rest times;
- Arranging proper ventilation in workplaces; and
- Regular cleaning and maintenance (and recording thereof) of internal air-conditioning components.
Finally, employers must report to the relevant authorities if an employee or any of his/her family member (as informed by the employee) shows any COVID-19 symptoms or has been placed in quarantine.
On 3 May 2020, the MOLIP has issued an instruction which categorizes business and services under three heads, namely, essential businesses (i.e. electricity supply, communication service, private hospitals and health care services), public services (i.e. transportation, banking, hotel business) and essential public services (i.e. construction, mining, printing and publishing) which are essential for the public during the COVID-19 pandemic. These businesses and services may continue to operate after complying with the requirements specified by the MOHS to prevent and contain the spread of the COVID-19 pandemic (and notably the measures described above). Evidence of complying with the orders of the MOHS must be submitted for joint inspection by the MOHS and MOLIP.
With a view to ensuring compliance with the aforesaid measures, The MOHS, MOLIP and Technicians board (collectively the “Inspection Team”) have been empowered to conduct inspections on factories and establishments in Myanmar from 20 April 2020 to 30 April 2020, with an extension up to 15 May 2020. If the factories and establishments comply with the guidelines issued by the authorities, they will be allowed to operate. However, if they are in breach with the legal requirements, they will not be allowed to re-open or conduct their normal operations.
Under the Communicable Diseases Act B.E. 2558 (2015) (“CDA”), the Labour Protection Act B.E. 2541 (1998) (“LPA”) and the Occupation Safety, Health and Environment Act B.E. 2554 (2011) (“OSHEA”), employers are required to provide a safe working environment for their employees and bear all related expenses to this effect. In the context of the COVID-19 outbreak, the Department of Labor Protection and Welfare under the Thai Ministry of Labour has provided guidance to employers with personnel in Thailand. They must regularly have their offices cleaned and/or sanitized (e.g. elevators, bathrooms, elevator buttons or door knobs) and place hand disinfectant and washing facilities at the entrances and exits of the workplace. They must also ensure that every employee wears a mask, avoids unnecessary travel to areas especially affected by COVID-19, and be subject to a 14-day quarantine period upon returning from travel to an epidemic-hit area. Clear guidelines on combating COVID-19 must be issued and made visible in the workplace, to educate employees and third parties who visit the workplace about general hygiene measures, and employees’ body temperatures must be checked every day before entering the workplace.
Where an employee tests positive for COVID-19 or is reasonably suspected of being infected, the employer must notify the Communicable Disease Control Officer of the Department of Communicable Disease Control Office under the Ministry of Public Health. Failure to do so will render the employer liable to a fine not exceeding THB 20,000.
According to the Vietnamese Labour Code No. 10/2012/QH13 (the “Vietnamese Labour Code”) and Law on Occupational Safety and Health No. 84/2015/QH13 (the “OSH Law”), employers must ensure the health and safety of their employees. More specifically, employers must ensure that the workplace satisfies safety requirements in respect of hazardous and harmful factors, including infectious diseases, and provide employees with relevant information in regard to these. Finally, the OSH Law provides that employers must report any cases of infection to the labour authorities.
In the context of the COVID-19 outbreak, the Ministry of Health has provided specific guidance to employers in Vietnam whose employees are working at the company’s premises. Employers are encouraged to take the following measures, among others:
- Establishing a COVID-19 prevention and control steering committee comprised of representatives of the employers, medical section, human resources, labour hygiene and safety, among others;
- Establishing a hotline to health facilities, centers for disease control/preventative medicine of provinces and cities or through a hotline to the local Department of Health;
- Conducting regular cleaning of the workplace areas and equipment (in particular: floors, walls, furniture, room furniture, common toilets must be disinfected once a day; doorknobs, keyboards, remote controls, desks, elevator buttons, electric switches, handrails and phones must be disinfected twice a day);
- Increasing airflow at work by increasing ventilation, opening doors or windows, using fans and limiting the use of air conditioners;
- Ensuring enough clean water and soap for hand washing at the wash areas/toilets for employees and clients (if any);
- Providing employees with adequate protection facilities (masks, antiseptic liquid etc.) and guidance on using them at workplaces where many people are exposed to potential infection;
- Performing temperature screening and disinfection at the entrance of the workplace and determine and disclose to employees the contact details of a member of the staff in charge of COVID-19 prevention at the workplace;
- Arranging a room at the workplace for temporary isolation if needed;
- Ensuring food safety and arranging staggered lunch and rest breaks to limit crowds;
- Arranging training for employees regarding measures on the control and prevention of COVID-19; and
- Limiting and restricting the organization of meetings and conferences.
If an employee shows symptoms of fever or cough and shortness of breath at the workplace, the employer must:
- immediately move that employee out of the workplace and place him or her into a medical area or temporary isolation area (if any), limiting the exposure of that employee to other people;
- provide such an employee with a face mask;
- investigate the exposure history of the affected employee within the previous 14 days;
- in the event that the employee has a fever and epidemiological exposure, report the case to the local medial authority and move the employee to a health-care establishment for timely examination and medical testing. If, by contrast, the employee has a fever but no epidemiological exposure, the employer must request that person to self-isolate at home; and
- conduct regular disinfection of the workplace.
In addition to these guidelines, the Prime Minister asked the local authorities to issue specific rules applicable in the country’s provinces to prevent the spread of COVID-19. In Ho-Chi-Minh City for example, certain non-essential services and activities have been suspended (such as plastic & cosmetic surgery facilities, spas, massage places or cinemas) and people are required to wear face masks in the workplace.
Best Practice – complementary measures
In addition to these measures and in order for the employer to show its good faith in the event of contamination at the office, companies may develop best practices such as requesting their employees to work physically at the office on a rotation basis (by creating two “teams” who would work at the office alternatively for example) and where those employees are working at the company’s premises, providing free masks and hand sanitizer gel on a daily basis. Where applicable, employers should also consider special rules for employees at risk (i.e., older, pregnant and immunocompromised employees), such as an extension of the “working-from-home” scheme. Employers may also want to regulate the gathering of employees in meeting rooms or in the canteen for example or organize – when possible – the transportation of the employees to avoid public transport. In all cases, it is recommended to keep track (in writing) of the measures implemented.
These complementary measures will be of particular importance in the event of claims filed by employees against their employer for falling short in terms of its health and safety obligations. In such a case, the labour court would very likely look into the voluntary measures taken by the employer to prevent the risk of contamination at the workplace to decide whether it is liable (or not) to compensate employees making such a claim.