CATALYST // PEOPLE:
protecting and reshaping
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The Covid-19 global pandemic is above all else a humanitarian crisis. To control the spread of disease while defending their economies, governments around the world have adopted unprecedented public health and financial support measures. Safeguarding employees, preserving jobs and skills, and protecting personal data are all part of an on-going process of dynamic adaptation for employers.
Worldwide, the economic consequences of the Covid-19 pandemic threaten the existence of millions of businesses and the livelihoods of their employees. In response, governments – on the whole - have moved rapidly and on an unprecedented scale to put in place significant measures to protect public health and to seek to minimise the jobs and skills lost as a result. In this guide, we explore the measures available to employers, and approaches they may wish to take, during the crisis and in its aftermath to safeguard the health and safety of employees, to preserve jobs, skills and the future viability of businesses, and to protect individual personal data. The decisions employers take now will determine how their businesses are positioned for the future and the extent to which they may be vulnerable to claims.
Summary
POLLING DATA AREA
Safeguarding employees
Preserving skill, jobs and viability
Protecting personal data and compliance
Governments have introduced lockdown measures restricting contact between people to slow the spread of Covid-19 and safeguard their citizens. In a number of countries the lockdown periods are proposed to be lifted or relaxed in the near term. At this stage, employers will need to put in place safeguard measures for a gradual or total return to work. Employers have a strict liability duty to protect the health and safety of their employees and provide a safe place of work. The Covid-19 risk will necessitate a thorough review of existing working environments and practices, and has increased the level of homeworking. Employers will need to adapt their policies as necessary to protect health and safety, data and respect human rights.
Preserving skills, jobs and viability
Governments have put in place wide-ranging measures to preserve jobs, skills, economic capacity and support those negatively impacted while measures to control Covid-19 are in place. Employers are having to adapt to the challenges, make use of the support available while also facing difficult decisions to maintain viability.
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Covid-19 has forced organisations to quickly put in to place measures with the aim of ensuring both business continuity and the protection of employees. Data privacy, compliance and security issues are raised by working from home and in relation to an employee’s movements, employee testing and health.
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April 2020
Directors’ duties – Directors will need to be mindful of their duties to the company, to shareholders, to wider stakeholders and, where relevant, to creditors. Several jurisdictions have announced relaxations to the duties owed to creditors in the current disrupted climate. It is essential that the whole board is involved in discussions of matters concerning, or which could affect, the company’s future solvency. Executing documents – Where documentation has to be signed, there may be logistical issues, for example in getting a document witnessed or, in some jurisdictions, executing certain types of documents electronically. Access to notaries may also be restricted. Early planning will be key. Price sensitive information and market disclosure – Companies with publicly traded securities will be under obligations to disclose price-sensitive information. Whilst delaying disclosure may be permissible in certain situations, a company cannot delay disclosure of financial difficulties, even if it is in negotiations which may help remedy its position. Ongoing obligations – Companies should not forget their “business as usual” obligations, for example around notifying directors’ dealings, updating the company’s or its officers’ details with the appropriate regulators or registries, filing accounts and corporate reports and returns by the requisite deadline (or applying for an extension if necessary) and renewing insurance policies. Insolvency law – Companies and their directors must ensure that they do not fall foul of applicable insolvency laws, in particular when considering new or restructured arrangements which may put assets beyond the reach of creditors should the company become insolvent. State Aid - Companies operating in the EU must comply with EU rules on State aid when taking advantage of available government support (which still apply in the UK during the transitional period following the UK's exit from the EU). Whilst the European Commission has approved multiple support schemes submitted by Member States in light of the current situation, companies should be aware that they may be forced to pay back non-compliant State aid, with interest. For more information on the EU Commission’s Temporary State Aid Framework, click here and here.
Other issues to consider
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© Herbert Smith Freehills 2020 Modern Slavery and Human Trafficking Statement | Accessibility | Legal and Regulatory | Privacy Policy | Report Fraud | Whistleblowing
The contents of this publication, current at the date of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.
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Last updated 3 March 2021
Return to the workplace
Employers navigating the return to work are focussing on the health and safety and organisational challenges that this brings as they look ahead to accelerated trends for the future of work.
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Respecting human rights
Businesses have a responsibility to respect human rights, deriving from international standards, domestic legislation and from their own human rights commitments. This responsibility is all the more important in the context of the severe impact that the pandemic is having, from a human rights perspective, across corporate activities and value chains. These issues are not only relevant only to a company’s own employees; they also affect wider stakeholders, having the greatest impact on the most vulnerable.
SAFEGUARDING EMPLOYEES
Governments have taken steps to safeguard their citizens and employers must also ensure the safeguarding of their employees.
Immediate Steps
Looking further ahead
An immediate priority for employers, from both a human and risk-limitation perspective will be to protect the (mental and physical) health and safety of their employees who are:
Working practices and the working environment have already been evolving in the context of technological advances and generational and cultural changes in the way people want to work. The Covid-19 challenge will add further momentum to some of the existing trends (such as increased homeworking, reduced international travel and use of technology) and will create some further changes.
Governments have introduced lockdown measures restricting contact between people to slow the spread of COVID-19 and safeguard their citizens. Measures have included restrictions on international travel, events, leaving the home and outside activities, as well as the introduction of social distancing rules, shutting non-essential retail and service providers and closing schools. Employers should bear in mind that such measures may adversely impact their employees’ mental and physical health.
Lockdown measures
Employers have strict duties to provide a safe working environment and take care of the health and safety of their employees. These duties can come in the form of legal or contractual obligations. In the current context there are a number of possible impacts on the right to health. First, in relation to physical health, there are specific risks in relation to on-site workers, who more exposed to contamination and transmission of COVID-19. New ways of working can also give rise to mental health issues. From increased levels of domestic violence, to anxiety caused by longer working hours, there are a range of potential impacts that businesses should be aware of, monitor carefully and mitigate where possible. Employers must safeguard their employees within the new contexts that the lockdown requirements have created. This means ensuring that whether employees continue working in their existing working environments (where this is permitted), or in new settings (often from home) that appropriate steps are taken to protect their health and safety. Employers should also consider the employment implications of such arrangements, including tracking work attendance, timesheets, leave and other entitlements and arrangements. Employee representatives and trade unions in a number of jurisdictions are very carefully and actively monitoring employer responses and practices and in some jurisdictions there have already been a number of employee health and safety related claims. These may well increase in the coming months.
Employee health and safety
Cutting costs
Government support packages
Debt finance
CAPITAL CALLS
Insurance
ASSET DISPOSALS
Governments have introduced lockdown measures restricting contact between people to slow the spread of COVID-19 and safeguard their citizens. Measures have included restrictions on international travel, events, leaving the home and outside activities, as well as the introduction of social distancing rules, shutting non-essential retail and service providers and closing schools.
For up to date information on Covid-19 employment law issues in the UK, see our employment blog
Regional insights
Last updated 2 July 2020
Immediate steps
Audit discretionary spending Review and consider pausing any upcoming dividend payments Explore government packages for support with employees and rental costs
LOOKING FURTHER AHEAD
Already still working at the workplace (e.g. in factories, production and manufacturing units and operations, laboratories, mines, warehouses etc.); About to return to the workplace on a staged or full basis once lockdown restrictions are lifted or relaxed; Continue to homework in line with health and safety restrictions or working practices in force.
Employers must keep up to date with all Government requirements and recommendations and best practice. They are going to have to be agile enough to successfully adapt and thrive or survive in the changing work environment, where there are still many unknown factors. Business should also maintain clear communication with their employees in relation to changes in working practices.
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Already still working at the workplace (e.g. in factories, production and manufacturing units and operations, laboratories, mines, warehouses etc.) About to return to the workplace on a staged or full basis once lockdown restrictions are lifted or relaxe; Continue to homework in line with health and safety restrictions or working practices in force.
For up to date information on Covid-19 employment law issues across multiple jurisdictions, see our employment blog
PRESERVING SKILLS, JOBS AND VIABILITY
Governments have put in place wide-ranging measures to seek to preserve jobs, skills, economic capacity, to minimise the number of job losses and to support those negatively impacted.
Employers will need to review what measures are available to assist them on a temporary basis during the immediate Covid-19 crisis and, if they satisfy the conditions to benefit from these, take steps to apply for these and implement the measures to the extent relevant and necessary to place their business in the best possible position to navigate the immediate impact of Covid-19. Employers should also consider the human rights impacts of any redundancies. Employers are having to adapt to the challenges, make full use of the support available while also facing difficult decisions to maintain viability, keep up the morale of their workforces, protecting the most vulnerable workers, and retain talented and skilled employees.
In the immediate aftermath, companies will need to assess to what extent they have incurred a more structural, longer term adverse impact and whether it is necessary to consider making redundancies and/or restructuring the way in which the company is resourced. In this way, companies can ensure their businesses are correctly aligned to operational needs and market conditions, to ensure viability in the long-term.
To date, government support has chiefly taken the following forms in relation to employees: Government payroll and employment support Measures range from steps making it easier for companies to reduce employees’ hours and pay, to effectively underwriting a percentage of payroll costs for furloughed/partial activity employees. Government support for working parents and carers Support available could include paid leave for a certain period or baby-sitting vouchers. Compensation for isolating employees This may include entitlements to sick pay and paid leave.
Government support measures
Where the temporary government financial support measures do not prove sufficient to aid employers through the crisis period, employers may have to consider permanent cost-cutting measures, such as redundancies. In this case, employers will need to verify whether there are any government restrictions on making redundancies over a specific period (in particular where this is a condition for receiving other State aid measures) and will of course need to comply with local law requirements on collective redundancy procedures, including, where relevant, informing and consulting with employee representatives and/or trade unions.
Employer steps to maintain viability
Employers are having to adapt to the challenges, make full use of the support available while also facing difficult decisions to maintain viability, keep up the morale of their workforces and retain talented and skilled employees. The Covid-19 outbreak presents exceptional challenges for both employers and employees. The support measures introduced by governments vary from country to country, reflecting differing lockdown measures in force, divergent means and cultural and political inclinations.
Last updated 17 June 2020
Employers will need to review what measures are available to assist them on a temporary basis during the immediate COVID-19 crisis and, if they satisfy the conditions to benefit from these, take steps to apply for these and implement the measures to the extent relevant and necessary to place their business in the best possible position to navigate the immediate impact of COVID-19. Employers should also consider the human rights impacts of any redundancies. Employers are having to adapt to the challenges, make full use of the support available while also facing difficult decisions to maintain viability, keep up the morale of their workforces, protecting the most vulnerable workers, and retain talented and skilled employees.
PROTECTING PERSONAL DATA AND COMPLIANCE
Data privacy, compliance and security issues arise in relation to an employee’s health, movements, working from home and attending the work place whilst the Covid-19 threat remains relevant.
Ensure measures implemented involving the processing of employee data (including sensitive health data) are consistent with current public health and national data commissioner advice, to help inform what is proportionate. Carry out legitimate interests assessment or data protection impact assessments if required. Restrict the processing of sensitive health data as far as possible Review employee use of unauthorised third party applications. Ensure that adequate IT security is in place to take into account remote working on a large scale and for a prolonged period. Update company policies on remote working if needed. Remind employees to be alert to security issues and of best practices and expectations to ensure secure working from home. Consider ad-hoc training for those roles that typically do not work from home. Ensure that employee privacy notices reflect any amendments to data processing, and employees are fully aware of any such amendments. Have in place appropriate policies and procedures relating to the retention/deletion of data collected in the context of the Covid-19 pandemic (i.e. to ensure that data is not being retained longer than necessary).
With many organisations starting to consider strategies for a 'return to work', the privacy implications of putting in place measures such as temperature checks, immunity testing or thermal imaging will need to be carefully worked through in the absence of any Government mandate to roll out such steps. Proportionality and data minimisation are likely to be key.
In many instances, this has involved increased processing of health data, in ways that were not envisaged a short time ago. Organisations across the globe are also asking employees to work from home, which potentially gives rise to enhanced (or at least unanticipated) data security and confidentiality risks. Given the timeframes involved and speed at which government advice and directions have evolved, data protection regulators are recognising the challenges involved, yet a global pandemic is not a general waiver for privacy compliance. Likewise, working from home continues to require appropriate technical and security measures to be put in place, including in relation to increased cyber security threats and vulnerabilities.
Existing facilities
Covid-19 has forced organisations to quickly put in place measures with the aim of ensuring both business continuity and the protection of employees.
Last updated 11 June 2020
Identify existing facilities, and any obstacles to drawing down under them – and consider drawing down while available and possible Think about any waivers or covenant resets that may be required Plan how to submit utilisation requests / execute any necessary documentation in light of current and possible future restrictions on meetings and self-isolation Monitor financial covenants and accuracy of representations and consider if any events of default have to be notified to lender(s)
United Kingdom
Germany
Spain
Belgium
Netherlands
Singapore
Hong Kong
South Africa
US
Australia
France
UAE
Italy
Click through for more country-specific overviews of personal data and compliance issues for employers in your markets.
Russia
Asia
Vietnam
Thailand
SAFEGUARDING EMPLOYEES: UK
Employers should enable all individuals to work from home as much as possible, with particular support urged for those in the more vulnerable categories. From 23 March 2020, employers were asked to "take every possible step to facilitate their employees working from home". Employees working from home should be paid as normal. Employers should ideally have a homeworking policy to cover issues such as:
Employment health and safety
The UK Government issued guidance on self-isolation and social distancing as well as ordering certain businesses and venues to close from 23 March 2020. Under the Coronavirus Act 2020 and related regulations, the police and other relevant authorities were given powers to enforce the requirements, including through fines and dispersing gatherings. Since then, the guidance has relaxed slightly and many business types have now been permitted to reopen. See here for the guidance applicable until 4 July 2020 and here for the changes that will apply from 4 July 2020. Detailed "Staying safe outside your home" guidance is here. The list of businesses required to remain closed is here and guidance on the steps employers must take to make their workplaces COVID-secure is here. These measures are discussed in more detail in Return to the workplace: UK. The Stay at home guidance for households with possible COVID-19 infection provides that:
Clinically extremely vulnerable people with one of a list of specified underlying health conditions were notified by Public Health England and advised to "shield" themselves by self-isolating until 31 July 2020, when the shielding programme is expected to "pause" unless there is a “significant rise in cases” in the meantime. The government is asking employers to ease the transition for their clinically extremely vulnerable employees, ensuring that robust measures are put in place for those currently shielding to return to work when they are able to do so (see guidance here). Individuals who have symptoms or are self-isolating or shielding in accordance with this guidance will be entitled to statutory sick pay unless they are capable of working from home. They may also be entitled to contractual sick pay depending on the terms of the contract and whether they are ill. If they are working from home, they should receive normal full pay. On 28 May 2020 statutory sick pay entitlement was also extended to individuals who have been told to isolate under new public health test and trace systems.
individuals with relevant symptoms (a new continuous cough, a high temperature or a loss of or change in normal sense of taste or smell) or with a diagnosis of COVID-19 should self-isolate for 7 days, and longer if still suffering a high temperature at the end of that period; where a household member or anyone who is in a support bubble with the individual has any of the above symptoms, the whole household or support bubble should isolate for 14 days; where an individual has tested positive for COVID-19, the NHS test and trace service will trace close recent contacts of the individual to notify them that they must stay at home for 14 days.
health and safety aspects of working from home; provision of equipment; data security, data protection law and other IT issues; hours of work and working time rest breaks, and any requirement to be available to travel to the office/elsewhere; whether permitted by home insurance, mortgage or leave terms; who is responsible for additional expenses (household bills, printing, postage, increased insurance premium etc.); any tax consequences.
Where jobs can only be done at a place of work, then employees should continue to travel to work (provided they are well and not self-isolating or shielding), but employers should make their workplaces COVID-secure and ensure employees can follow the social distancing guidelines. This is discussed further in Return to the workplace: UK Our detailed briefing on health and safety and other post-lockdown issues for employers is available here.
For the foreseeable future, workers should continue to work from home rather than their normal physical workplace, wherever possible, not least as this will minimise the risk of overcrowding on transport and in public places. (The plan also makes clear that social distancing is to be followed rigorously on public transport and the use of home-made face-coverings is recommended.) All workers who cannot work from home should travel to work if their workplace is open. Sectors of the economy that are allowed to be open should be open, for example this includes food production, construction, manufacturing, logistics, distribution and scientific research in laboratories. Workplaces should be made "COVID-19 Secure", following Government guidance, as soon as possible. The only exceptions to this are those workplaces such as hospitality and non-essential retail which during this first step the Government is requiring to remain closed. It remains the case that anyone who has symptoms, however mild, or is in a household where someone has symptoms, should not leave their house to go to work. Those people should self-isolate, as should their households.
The second stage of adjustments, which will be no earlier than 1 June, proposes beginning a phased return for primary school children, re-opening non-essential retail when and where safe and subject to being compliant with the COVID-19 Secure guidelines (with further guidance on the phasing and timeframes promised shortly), and re-opening more local public transport in urban areas subject to strict safety measures. The third stage, which will be no earlier than 4 July, will include opening at least some of the remaining businesses and premises that have been required to close, including personal care, hospitality, public places and leisure facilities, where and to the extent that these can re-open safely. Workplace guidance on making eight different types of workplace setting COVID-19 Secure has also been published:
1. Construction and other outdoor work 2. Factories, plants and warehouses 3. Home environments 4. Labs and research facilities 5. Offices and contact centres 6. Restaurants offering takeaway or delivery 7. Shops and branches 8. Vehicles (covering couriers, mobile workers, lorry drivers, on-site transit and work vehicles, field forces and similar)
Further information is available here. Guidance for other sectors that are not currently open will be developed and published ahead of those establishments opening to give those businesses time to plan. On 13 May the Government set up five taskforces to work with these sectors to develop safe ways for them to open at the earliest point at which it is safe to do so, as well as pilot re-openings to test businesses’ ability to adopt the guidelines. The five taskforces cover:
pubs and restaurants non-essential retail (including salons) recreation and leisure, including tourism, culture and heritage, libraries, entertainment and sport places of worship, including faith, community and public buildings international aviation.
Our detailed briefing on health and safety and other post-lockdown issues for employers is available here.
For up to date information on Covid-19 employment law issues in the UK, see our employment blog here.
SAFEGUARDING EMPLOYEES: SPAIN
The Spanish government has recommended employers to put in place working from home wherever possible. Companies must put in place appropriate measures to enable such arrangements, provided that the burden of doing so is proportionate. If working from home is not possible, companies are obliged to issue a certificate to their employees attesting to their obligation to travel to work.
Working from home
In Spain, the state of emergency is currently due to be in place until 9 May 2020. Nevertheless, from 13 April 2020, businesses whose employees cannot work remotely were allowed to re-open. During the state of emergency, citizens may appear in public only for limited number of activities:
The Spanish government has published a list of essential work activities, which will be the only ones that can be carried out during the state of emergency. More details can be found here. In the event of infringement, the fines range from €100 to €600,000, or imprisonment from 3 months to 1 year, depending on the severity of the offence.
shopping for food, pharmaceuticals and basic necessities; attending health centres, services and establishments; travel to work or to conduct professional or business activities; return to the place of habitual residence; assistance and care for the elderly, minors, dependants, disabled persons or particularly vulnerable persons; travel to financial and insurance entities; if required due to force majeure or necessity; any other activity of similar nature to be carried out individually, unless accompanied by disabled persons or for another justified reason.
Last updated 23 April 2020
SAFEGUARDING EMPLOYEES: FRANCE
France is currently imposing the following confinement rules: all movements are forbidden except in the following cases, and on the condition that the individual is able to produce a self-certified attestation (which can be downloaded here) that they are outside of their home solely for the reasons below:
Working from home is currently strongly encouraged for all employees other than those who cannot work from home or whose presence at work is required (in which case the employer must ensure that health and safety is observed). Occasional presence at work for people who can work from home will have to be justified by reasons of essential business needs. Employers should take all necessary steps to ensure that employees working from home have the necessary equipment and that adequate health and safety measures are in place.
travel between home and place of work only when it is absolutely necessary for the job and the work cannot be performed at home; medical treatment; shopping for necessary goods (food, health care products etc.) in authorised shops; essential family needs – to look after vulnerable persons or to take care of children; brief outings, only close to home, for individual physical activity (walks, jogging (within restricted hours) etc.) or in relation to pets (walking the dog etc.). Collective sports are prohibited.
The police enforces these restrictions on verification of the self-attestation certificate and can impose fines of €135 for breaches of any of these restrictions (or €375 in the event of non-payment).
SAFEGUARDING EMPLOYEES: GERMANY
Employees have no automatic right to work from home if this is not expressly agreed in their current employment contract, or provided for in company policies or the applicable works council agreements. This means that the mere fear of being infected at the work place is not a valid reason for the employee to refuse to come to work or ask to work from home and can lead to disciplinary action. On the other hand, employers cannot, in principle, unilaterally require employees to work from home without a corresponding provision in the employment contract or in an applicable works council agreement. If no such provisions exist and a works council exists within the company, a works council agreement needs to be negotiated first before a general working from home policy can be established. For companies without a works council, individual contracts of employment can be amended, provided the employee consents to the amendment. Most importantly, these agreements should, among other things, contain provisions on the costs of maintaining a home office and include health and safety provisions. If the business is not completely closed and employees are in theory still permitted to work from the office, employees can however be encouraged by the employer to work remotely (although cannot be forced to do so). In the event of any Government restrictions being imposed on coming into the workplace (not currently envisaged for Germany), it is likely that employees will not be legally required to work from home, but in practice the majority are expected to agree to do so. Employees working from home should be paid as normal. Since no specific COVID-19 rules have currently been issued by the federal government or state governments, the general legal rules continue to apply for working from home.
The German federal and state governments adopted the following guidelines for restricting social contact from 22 March 2020 to limit the spread of COVID-19. The measures (listed below) have been extended until 3 May 2020:
The German federal and state governments cooperate closely in implementing these restrictions and in assessing their effectiveness. Further regulations based on regional peculiarities or epidemiological situations in the federal states or districts have been implemented. Individuals are required to self-quarantine for at least 14 days, if they have been in contact with any infected persons.
Citizens are urged to reduce contact with people outside their household to the absolute minimum. In public, wherever possible, a distance of at least 1.5 m must be maintained between people other than those mentioned in the point above. In public places, people are only allowed to appear alone, with one person outside of their household, or with members of their household Travel to work, emergency care, grocery shopping, visits to the doctor, participation in meetings, necessary appointments and examinations, help for others, or individual sports and exercise outside as well as other necessary activities remain possible. Groups of people gathering in public places, in apartments and private premises are prohibited. Violations of the contact restrictions should be reported to the authorities, the police are monitoring activities and sanctions are imposed in the event of infringements. Catering businesses are closed. This does not include the delivery and pick-up of take-away food for consumption at home. Personal care service providers such as hairdressers, beauty salons, massage studios, tattoo studios and similar are closed as they require close physical contact. Necessary medical treatments remain possible. In all establishments and especially those open to the public, it is important to comply with hygiene requirements and to implement effective protective measures for employees and visitors.
SAFEGUARDING EMPLOYEES: ITALY
Pursuant to the Protocol executed on 14 March 2020 between the Italian Government, the Trade Unions and the Entrepreneurial Associations, employers must allow employees to work from home whenever possible, even in the absence of individual written agreements. The Protocol also dictates that all national and international business trips are suspended, even if already agreed or organised. Pursuant to the Prime Minister’s Decree of 22 March 2020, even though premises are closed, the employer must still allow workers to work remotely, whenever possible.
Pursuant to the Prime Minister’s Decree of 22 March 2020 and the Prime Minister’s Decree of 1 April 2020, companies throughout Italy were ordered to close from 26 March 2020, although a limited number of businesses in some regions, including bookshops, stationary stores, children's clothes shops, forestry and gardening have been allowed to recommence operations from 14 April 2020. Only companies that provide essential services or that produce pharmaceuticals or food, or that are necessary to ensure the supply chain of such industries, or whose production cannot be interrupted, have been permitted to stay open since the beginning of the crisis. Such companies are specifically indicated in the attachment to the Prime Minister’s Decree. Companies that are not specifically identified as providing essential services, but that are necessary to ensure the supply chain of pharmaceuticals and food industries, or whose production cannot be interrupted, may file an application with the Head of the local police authority (Prefetto) asking to stay open. The Prefetto has the power to order the closure of the business where its activity is deemed not necessary or if its production can be interrupted. All residents are required to stay at home and may travel only for authorised reasons (in the event of police checks, a declaration justifying the travel must be presented). However, such restrictions do not apply to authorised travel to work.
SAFEGUARDING EMPLOYEES: BELGIUM
Under normal circumstances, an employee cannot be obliged to work from home. However, due to the COVID-19 crisis, employees of non-essential businesses are required to work from home, unless their duties cannot be performed from home. If the role cannot be performed at home, the employer is required to organise the work in a way that ensures social distancing of at least 1.5m is maintained. The employer is also expected to organise transport to and from work for employees. If it is not possible to respect these conditions, the employer is required to close its business. The employees will in that case be temporarily unemployed. The Belgian government, together with the Belgian unemployment offices, have put in place adaptations to the usual strict application procedures for temporary unemployment to make this more flexible to provide support to employees who are temporarily unemployed in these circumstances. If a remote working policy and framework is already in place, the employer can introduce remote working on the basis of these rules. If such framework does not exist, employers should seek to agree one with the employees. The framework should contain arrangements on availability of the employee during the day, the frequency, the days on which remote working will take place, reimbursement of certain costs and provision of equipment.
The Belgian government issued a Ministerial Decree on 18 March 2020 setting out urgent measures to limit the spread of COVID-19. The Ministerial Decree ordered the closure of all stores and shops, with a few exceptions (e.g. food stores). As a result, employees working in closed stores are effectively temporarily unemployed and will be eligible for temporary unemployment benefits paid by the Belgian unemployment office (RVA/ONEM) if the necessary conditions are met. The measures were to apply until 5 April 2020, but have been extended twice so far– firstly until 19 April 2020 and more recently until 3 May 2020. The second extension saw some relaxations – for example, businesses such as do-it-yourself stores or garden centres can re-open, but need to observe the social distancing measures applicable to shops that have remained open.
SAFEGUARDING EMPLOYEES: NETHERLANDS
As part of the measures to control the COVID-19 outbreak, remote working is strongly encouraged during this crisis. In order to facilitate working from home, both employers and employees are expected to act reasonably. Employers may, for example, allow employees to collect necessary items from the office such as keyboards and office chairs. Employees may be asked to arrange for their own remote working environment and to use their own laptop. For some jobs, it may not be possible to work from home. In that case, employees may be asked to cease working. For other jobs, specifically in key areas, employees may be required to come to work.
The Dutch government initially announced on 12 March 2020 that social interaction should be avoided as much as possible until 6 April 2020 and has since extended the duration of the adopted measures until 19 May2020. Gatherings of 100 or more persons are not permitted. All bars, restaurants and sport centres are closed. When interacting with others, people are expected to keep at least 1.5 metres distance from others. Employers are encouraged to enable and allow employees to work from home as much as possible during the crisis. Some activities have been defined as vital by the Dutch government, meaning that it is crucial that the work is continued. This includes, amongst others, healthcare, public utility, transport and media. Employees working in these key areas may be required to come to their workplaces, if that is necessary. The guidelines of the National Institute for Public Health and Environment have to be followed in all workplaces. This means that appropriate measures must be taken to prevent contamination between employees. Employees that have a cold or other symptoms of the COVID-19 virus should stay at home until the symptoms pass. After 24 hours of being symptoms-free, employees are allowed to go outside, subject to the applicable general measures.
SAFEGUARDING EMPLOYEES: AUSTRALIA
Employers owe safety duties to workers working from home. In the context of a large segment of the workforce now working from home, safety regulators have published a range of specific guidance determining how employees can safely work from home in the context of the COVID-9 outbreak, including in respect to providing supervision and instruction to workers, ergonomic set up, managing mental health risks and meeting notification and consultation obligations under safety legislation. Employers should also consider the employment implications of such arrangements, including tracking work attendance, timesheets, leave and other entitlements and arrangements.
‘Stay at home’ laws are being enforced by police at a State and Territory level. Australians are not permitted to leave home unless they have a ‘reasonable excuse’. Broadly, this means:
The Government has also issued guidance on when self-isolation is necessary. Public gatherings, excluding household members, have been reduced to a maximum of two people in most States and Territories. Fines for breaching the stay at home rules vary from $1,000AUD to $11,000AUD for individuals, depending on the relevant State or Territory. Higher fines apply to businesses. The following facilities were restricted from opening from 23 March 2020:
shopping for food exercising — in a public space such as a park, limited to no more than 2 people going out for medical appointments or to the pharmacy providing care or support to another person in a place other than your home going to work if you cannot work from home.
pubs, registered and licensed clubs (excluding bottle shops attached to these venues), hotels (excluding accommodation) gyms and indoor sporting venues cinemas, entertainment venues, casinos and night clubs restaurants and cafes will be restricted to takeaway and/or home delivery
From 26 March 2020, these restrictions were extended to a number of other food and entertainment facilities. Western Australia and Queensland have also instituted border closures, with only certain categories of exempt travellers allowed to enter those States. A quarantine period currently applies to anyone entering Tasmania, South Australia and the Northern Territory.
SAFEGUARDING EMPLOYEES: RUSSIA
Many companies announced a proposed final dividend earlier this year and would typically seek shareholder approval for its payment at their annual general meeting (AGM). Final dividends usually only become a debt payable to shareholders only once they have been approved by the shareholders. If a company has announced a proposed final dividend but has not yet published its notice of AGM it could omit the resolution approving the dividend. If the notice of AGM has been published, the chairman could seek approval to withdraw the resolution at the meeting.
Dividends
In the UK, there is no program for government relief for rent at the moment but a landlord's entitlement to repossess business (and residential) property is currently suspended. Landlords may benefit indirectly from the package of support available to help businesses through the COVID-19 pandemic, including the increases and expansions to the categories of business tenants able to claim Business Rates Retail Discount (“BRRD”), which may put tenants in a better financial position than would otherwise be the case. The BRRD is discussed further in the Government support section.
Premises
The UK Government has announced a “Coronavirus Job Retention Scheme” which will provide payroll support. Under the scheme, the Government will cover up to 80% of the wages of “furloughed” employees, see the Government support section.
Employees
The UK Government has announced a “Coronavirus Job Retention Scheme” which will provide payroll support. Under the scheme, the Government cover up to 80% of the wages of “furloughed” employees. See the Government support section for further information.
SAFEGUARDING EMPLOYEES: UAE
SAFEGUARDING EMPLOYEES: SOUTH AFRICA
SAFEGUARDING EMPLOYEES: US
SAFEGUARDING EMPLOYEES: ASIA
Preserving skills, Jobs and viability: UK
Individuals who have symptoms or are self-isolating in accordance with the UK Government's guidance will be entitled to statutory sick pay (SSP), unless they are capable of working from home. From 16 April 2020, clinically extremely vulnerable employees who are advised to "shield" at home under the shielding programme (which is due to be paused on 31 July 2020) are also eligible for SSP. Employees may also be entitled to contractual sick pay depending on the terms of the contract and whether they are ill. If they are working from home, they should receive normal full pay. With effect from 13 March, SSP was extended to provide cover from day one of COVID-19 related absence, and the Government will reimburse businesses with fewer than 250 employees in full for the cost of 14 days of SSP per employee (where eligible due to COVID-19). An "isolation note" can now be obtained online to provide evidence, if required by employers. On 28 May 2020 statutory sick pay entitlement was also extended to individuals who have been told to isolate under new public health test and trace systems. The NHS test and trace service will provide a notification that an employee can use as evidence to inform their employer that they have been told to self-isolate pursuant to this service. Of course, regardless of whether SSP is strictly payable in any particular situation, many employers will choose to pay and even augment the statutory rate and/or pay contractual sick pay to those unable to work from home as a result of the pandemic, in order both to support their staff and to discourage them from attending work against government guidance and thereby minimise the spread of the virus. How employers handle this situation will undoubtedly linger in the memory and actions to build loyalty and trust are likely to reap dividends in the future. In the event that these temporary support measures do not prove sufficient and employers need to consider more permanent cost-reduction measures, it may be that companies will have to potentially consider collective redundancies. There is currently no prohibition on collective redundancies in the UK either generally or in respect of employers who have received grants under the Coronavirus Job Retention Scheme. Our detailed briefing on health and safety and other post-lockdown issues for employers is available here.
Compensation for isolating employees
The UK Government shut schools from 20 March 2020, save that children of critical workers and vulnerable children were still permitted to attend. From 1 June 2020, nurseries and childminders were allowed to re-open and primary schools were asked to re-open for nursery, reception, year 1 and year 6; from 15 June secondary schools were asked to re-open to years 10 and 12. The government plans that all school children will be able to return full-time from September 2020. All UK employees are entitled to take leave to care for dependents in an emergency, but only for a few days. The right is unpaid, although some employers will provide contractual paid leave for these purposes. Parents of children not attending school prior to the end of the summer term, but who are able to perform their work from home while caring for children, should continue to be paid in full. Other options will need to be considered for parents unable to work from home and provide 'care' simultaneously. Parents with a year or more’s service may have an unused entitlement to unpaid parental leave; others may be able use up paid holiday or take other unpaid leave. Some employers may be able to offer adjusted hours so parents can work when younger children are asleep, or reduced hours (and pay). Employers can also offer to place parents on furlough with their agreement under the UK Coronavirus Job Retention Scheme.
Government support for working parents and carers
The UK Government’s “Coronavirus Job Retention Scheme” is a payroll support scheme for all employers with a UK bank account and PAYE payroll started on or before 19 March 2020. The scheme will last until 31 October 2020. In summary, the scheme provides that:
until 31 July 2020, employers can claim a grant covering up to 80% of wages (capped at £2,500 per month), plus associated employer social security contributions and minimum auto-enrolment pension contributions, of employees designated as "furloughed" (not working but retained on payroll); from August 2020, employees must continue to receive at least 80% of wages (capped) but the grant to employers is gradually reduced. For August 2020, employers must pay the associated employer social security contributions and minimum auto-enrolment pension contributions; from September 2020 employers must also pay 10% of the capped wages (and the grant is reduced to 70%); and from October 2020 the employer must pay 20% of capped wages (with the grant reduced to 60%). until 30 June 2020, employees on the scheme must be fully furloughed (and carry out no work) for a minimum of 3 consecutive weeks; an employer can only furlough employees after 30 June 2020 if they have already completed a three week period of furlough by 30 June (so the last date to furlough employees for the first time is 10 June 2020); from 1 July 2020 partial furlough is permitted so that employees can return to work part-time, subject to a minimum period of one week, and the grant will cover only 80% wages for the hours not worked (subject to a proportionate cap); company directors and LLP partners are covered; and there is no limit on the total funding available.
Government payroll and employment support
Claims can now be submitted via the Government Gateway. Grants to the employer will be made by the tax authority, HM Revenue and Customs (HMRC) and are expected to be received within 6 working days of submission. More details on the UK Coronavirus Job Retention Scheme are available here. Separately, Statutory Sick Pay (SSP) is payable to qualifying employees and from “day one” for those who self-isolate or are unwell owing to COVID-19 (the first three days are normally unsupported). From 16 April 2020 SSP is also payable to extremely vulnerable employees unable to work due to medical advice to "shield" at home for 12 weeks. The current rate of SSP is £95.85 per week. On 28 May 2020 statutory sick pay entitlement was also extended to individuals who have been told to isolate under new public health test and trace systems. Small and medium-sized employers (whose with fewer than 250 employees on 28 February 2020) may recover this cost where SSP has been paid as a result of COVID-19 from 13 March for a maximum of two weeks' sickness per employee. Claims can be made online from 26 May 2020; see here for further details. More details on UK SSP are available here.
Preserving skills, jobs and viability: SPaIN
Employees may adapt their working hours or reduce their working day by up to 100%, with a corresponding reduction of salary, if they provide evidence that they have to care for a spouse or civil partner in the following cases:
Collective redundancies for COVID-19 related reasons are currently prohibited in Spain. In relation to those companies which have benefitted from the ERTE measures, redundancies cannot be implemented for a period of 6 months after the expiry of the ERTE measures within the Company. Other companies which make redundancies during this period of the state of emergency will face damages claims up to the maximum rates.
there is a need for care as a result of COVID-19; the closure of education and other centres that provided care or assistance; and when the person entrusted with the care and assistance of a spouse or family member cannot continue to do so for justified reasons related to COVID-19.
The Spanish Government has put in place the following key measures:
Recoverable paid leave for employees who work in non-essential services: All workers who provide services to public or private companies whose business activities have not been temporarily closed were required to take recoverable paid leave between 30 March and 9 April 2020 (inclusive). During this period workers continue to be paid as if they were working normally and they recover the hours lost from the day following the end of the state of emergency until 31 December 2020 - through a negotiation procedure with a worker´s commission that must be followed. From 13 April 2020, certain non-essential workers have been allowed to return to work. Entitlement of fixed-term workers of at least two months' duration to unemployment benefits (they did not previously have the required minimum work period to make them eligible for unemployment benefits). Six-month moratoriums on the payment of social contributions, without interest, for companies and self-employed workers included in any social security scheme, who request this and meet the requirements and conditions to be established. Deferral in the payment of Social Security debts for those entities whose regulatory period of entry takes place between the months of April and June 2020, under the terms and conditions established in the Social Security regulations, with interest of 0.5% being applicable instead of the usual rate. In relation to the implementation of the temporary employment regulation procedure (ERTE):
If a company has 50 or more workers registered with the Social Security authorities, it will be released from paying 75% of its Social Security contribution. If it has less than 50 workers, it will be released from paying 100% of the contribution. For this purpose, a company’s employee headcount will be taken as at 29 February 2020. Workers affected by the suspension of their employment contract or a reduction of their working hours can receive unemployment benefits even if they have not fulfilled the minimum contribution period.
Preserving skills, jobs and viability: FRANCE
The partial activity scheme (activité partielle) permits an employer to reduce or temporarily suspend the activity of employees (other than the most senior employees in the company – cadres dirigeants) in circumstances where this can be justified, whilst still continuing to pay them and benefiting from Government aid for reimbursement of up to a maximum of 70% of the gross salary (subject to a maximum cap of 4.5 times the minimum monthly wage – i.e. €4,849.17 per month). From an employee perspective, the measure allows them to continue to be paid for hours that they are prevented from working as a result of the temporary stoppage. It also applies to forfait jours employees (employees whose working time is calculated according to a fixed number of days per year). The allowance is subject to income tax, but is exempt from contributions (other than CSG-CRDS charges, which are the equivalent of social security contributions) and tax on wages. Applications must be made to the relevant Préfet (State Representative) of the Department where the activity is taking place, although multiple applications need to be submitted for companies that operate at various locations. Proposed new measures are expected to speed up the decision-making process, with a decision in principle to be received within 48 hours of the application, and silence from the authorities being deemed to be consent. If companies are hampered by delays in accessing the online form, the Government have announced that reimbursement for partial activity would be retroactive from the moment it is put in place by the employer, and not the date of the decision formally authorising this from the Government. The aid applies from the date when the activity was reduced or suspended (provided that it is in or after March 2020). At this stage, the measures will be in place for 12 months, but this period may be extended. Employers can also request employees to take up to :
Employees who cannot work either due to child care responsibilities or imposed quarantine are entitled to State sickness benefits (IJSS - daily social security sickness payments) for up to 20 days. If required, the employer may need to top up the IJSS according to the applicable collective agreement. The sick leave period may be shared between the two parents (provided that each parent takes time off at a different period). From 1 May 2020, employees on sick leave to care for children or dependants will be transferred onto the partial activity regime rather than the State sickness regime. From 6 April 2020, the French Government has also put in place a new authorisation for State paid absence for those employees who share their homes with a person in a fragile state of health (e.g. persons with severe diabetic complications, with severe respiratory problems. The details of such authorised absence have not yet been issued. All of the above measures, which are relatively generous for employees, are designed to seek to avoid collective redundancies. However if these prove inadequate and companies experience serious longer-term economic difficulties, companies may need to consider collective redundancies. These are currently not prohibited in France but it is likely that the French Authorities will expect employers to seek to exhaust the State support measures summarised above, before turning to more serious and permanent ways of reducing costs, such as collective redundancies. This may mean that the DIRECCTE could be reluctant for example to validate/homologate social plans where employers have not first attempted to redress the business with partial activity measures.
10 RTT or CET days holiday on dates to be specified by the employer (or the employer can amend the dates previously selected by the employee, up to 31 December 2020 – this measure can be imposed unilaterally by the employer; and/or 6 days of their annual holiday entitlement on specific dates until 31 December 2020, if a company or branch-level collective agreement is in place.
Preserving skills, jobs and viability: GERMANY
If the employee's child is ill, the employee can stay home temporarily with continued pay to care for the child. However, if the child is healthy, but lacks suitable day care, the limits of the temporary paid leave are quickly reached. Only a child in genuine need of care, for whom the employee could not find suitable care even after serious efforts, can prevent the employee from working. The burden of proof lies with the employee. The maximum number of days a parent can stay absent from work due to lack of child care is considered to be a few working days per year. In addition, the obligation to temporarily take paid leave of absence under sec. 616 Bügerliches Gesetzbuch (BGB) is often excluded by a clause in the employment contract.
The employment law related measures to ease the burden on companies are currently limited to a relaxation of the regulations on short-time work compensation. Short-time work means a temporary reduction in regular working hours (and pay), and can be introduced by an employer when there is a significant reduction in the otherwise normal workload. The employees in turn receive part of their loss of income in the form of short-time work compensation. The new rules provide for 60% of the loss of net salary, or 66% for employees with at least one child, to be paid by the Federal Employment Agency. In certain industries the minimum payments of monthly net salary have been set at higher levels by industry wide collective agreements which have been put in place e.g. metalworking (80-97%), chemical (90%), automotive (90%) etc. During the last financial crisis, similar measures proved to be successful in avoiding high unemployment rates. The conditions for the granting of short-time work compensation have been relaxed as follows:
The threshold of employees who must have been affected by the loss of work has been lowered from 33% to 10%. All employees, including temporary workers, are covered by the scheme. Social security contributions are fully covered by the Federal Employment Agency using an online application process.
The responsible authority can impose a temporary ban on working on persons who are not themselves ill, but who are, for example, suspected of being ill or infected (e.g. because family members are affected) (sec. 31 of the German Protection against Infection Act (Infektionsschutzgesetz or IfSG). In this case, the person concerned is entitled to compensation (sec. 56 IfSG). The compensation is calculated in the first six weeks after the loss of earnings (net pay). From the seventh week of quarantine onwards, the competent authorities shall pay compensation equal to sick pay directly to the employee. The employer may apply to the responsible authority for reimbursement of the amounts paid within three months ex post. Pursuant to sec. 56 para. 12 IfSG, the employer may apply to the competent authority and request that the expected amount is reimbursed in advance. Further compensation benefits may, under certain circumstances, be granted to self-employed persons (see sec. 56, para. 4 IfSG). However, the employer will not be entitled to compensation if the employer is obliged to continue to pay remuneration anyway (e.g. according to sec. 616 BGB). The Federal Court of Justice considers an ordered prohibition of professional activity under sec. 31 IfSG to be a temporary and personal reason for prevention to work, which obliges the employer to continue to pay remuneration under sec. 616 BGB (BGH 1978, III ZR 43/77) for six weeks. It remains to be seen how these cases will be treated in practice in the current context.
Preserving skills, jobs and viability: ITALY
Employees with families composed of two working parents, both employed or self-employed, and children aged twelve or less, are entitled to:
Pursuant to Law Decree No. 18/2020, issued on 17 March 2020, the period spent in quarantine by workers in the private sector, is treated as sickness for the purposes of the economic treatment provided for by the relevant legislation. The employer can, therefore, submit to the social security institution an application for reimbursement of the sickness pay normally paid by the employer due to the worker’s quarantine. The relevant costs are then passed to the State within the maximum national limit of €130 million for 2020.
In general, business crises are usually dealt with in Italy through Cassa Integrazione Guadagni (CIG) for industrial companies and Fondo d’Integrazione Salariale (FIS) for trading companies, both of which are Government sponsored funds for the integration of salaries. Such instruments are intended to support businesses that are experiencing an economic crisis. They allow the employer to suspend the working activities or reduce the working hours, thus reducing the costs relating to the workforce, with the Italian social security agency bearing the cost of the employees’ wages. In response to the COVID-19 pandemic, the Government also issued Law Decree 18/2020. The Decree, among other things, contained specific measures for employers and employees:
In addition to the ordinary cases where recourse to CIG or FIS may apply, the Decree introduced specific forms of CIG and FIS that can be requested by companies that have had to suspend or reduce working activity due to the COVID-19 pandemic. Companies may apply for salary compensation by indicating they have been impacted by COVID-19, with no further explanation required on the reasons for the reduction of the business activity (as is usually required). This salary compensation is available for a period of up to 9 weeks, to be used by the end of August 2020. The rate of the salary compensation is set at 80% of the total remuneration that would have been due to the worker for the hours not worked, with specific monthly caps in place for various salary slabs. A bonus of EUR 100 was covered by the Government for the month of March 2020 for public and private employees who are continuing to work, and who have an income lower than EUR 40,000 for the previous year. The bonus (which is exempt from taxation) is to be paid automatically by the employer, if possible, in the April pay-check or by the end of the year.
baby-sitting vouchers up to €600.00; or an extra 15 days parental leave, to be used continuously or in fractions, with the payment of 50% of salary.
With respect to families composed of two working parents, employed or self-employed, and children aged between twelve and sixteen, the parents have the right to be absent from work, one at a time, for the period when schools are closed, without this being considered as unjustified absence or holidays, but without remuneration.
Preserving skills, jobs and viability: BELGIUM
The Belgium Government has taken measures to adapt the unemployment benefits regime to make this more flexible to permit employees who are unable to work from home and cannot work from employer premises for health and safety reasons, to obtain unemployment benefits.
Preserving skills, jobs and viability: NETHERLANDS
All schools and nurseries have been closed since 16 March 2020. Parents who both work in key professions, (e.g. doctors, cleaners, supermarket staff, teachers, etc.), can nevertheless bring their children to school. Schools and nurseries have been transformed into day care for the children of parents in key professions. Some schools also offer day care for children with one parent working in a key profession.
An extensive support package for companies and entrepreneurs has been announced by the Dutch government. Compensation will be offered in order to ensure that the loss of jobs will be as limited as possible. An emergency fund for the purpose of work retention will be established (referred to as the NOW). The NOW will consist of the following key elements:
An application can be made with retroactive effect from 1 March 2020 onwards; The duration is three months, with the option of a single extension by three months; The employer has to expect to suffer more than 20% loss in turnover as a result of the COVID-19 crisis; State compensation is related to the expected loss in turnover; Details of the arrangements have not been made public yet. An example that has been given states:
The NOW compensation will be paid on two conditions:
In case of 100% turnover loss: 90% compensation of wage costs; In case of 50% turnover loss: 45% compensation of wage costs; In case of 25% turnover loss: 22.5% compensation of wage costs.
The employer must continue to pay 100% of the wages; While receiving NOW-compensation, employers cannot submit an application for a permit to dismiss employees for business economic reasons.
The NOW compensation does not apply for self-employed contractors. These contractors can apply for social assistance benefits for a maximum duration of three months. The NOW arrangement was published on 31 March 2020 and employers can submit an application from 6 April until 31 May 2020;
Preserving skills, jobs and viability: AUSTRALIA
Full-time and part-time employees who have symptoms and are unfit to attend work will be entitled to accrued paid personal leave under the NES. Employees who are self-isolating in accordance with government guidance will not be entitled to paid personal leave. Those employees may be able to use accrued paid annual leave or long service leave or take other unpaid leave, unless they are capable of working from home. If they are working from home, they should receive normal full pay. The Fair Work Commission has also temporarily varied 99 modern awards to:
The National Cabinet’s most recent position is that schools not be closed. The federal government has pushed for a nationally consistent approach, and expressed its position as being that schools should remain open. However, states and territories have varying arrangements. Most have advised that remote learning will be used for Term 2 (other than for children of essential workers, whose parents can’t work from home, or for vulnerable children) or have encouraged families to keep children at home if possible. Full-time and part-time employees are entitled to take accrued paid carer’s leave under the National Employment Standards in the Fair Work Act 2009 (Cth) (NES) to provide care or support to a member of the employee’s immediate family who requires care or support because of a personal illness or injury, or because of an unexpected emergency. Absences associated with school closures will arguably qualify an employee to take carer’s leave, even where some notice of the closure is given. Casual employees, and full-time or part-time employees who do not have an accrued entitlement, are entitled to take two days’ unpaid carer’s leave “per occasion”. In the longer term, if employees are able to perform their work from home while caring for children, they should continue to be paid in full. Other options will need to be considered for parents who are unable to work from home and provide 'care' simultaneously. Once any paid carer’s leave has been exhausted, some may be able to use accrued annual leave or long service leave, or take other unpaid leave. Some employers may be able to offer adjusted hours so parents can work when younger children are asleep, or reduced hours (and pay).
On 8 April 2020, the Federal Government formally passed the Coronavirus Economic Response Package Omnibus (Measures No. 2) Bill 2020 which introduced the historic JobKeeper payment scheme. This new scheme will see eligible businesses receive a fortnightly wage subsidy of AUD$1,500 for each of its eligible employees in a bid to assist businesses with the retention of employees during the COVID-19 pandemic. The JobKeeper payment applies to all businesses across Australia who can show that their business has suffered a 30% downturn (or 50% for businesses with annual earnings of $1 billion). To receive the payments, eligible businesses must register with the Australian Tax Office which will administer and monitor the payments to ensure that the subsidy is passed onto eligible employees in full. Employees will be eligible if they are at least 16 years of age, are an Australian resident or holder of a subclass 444 visa, and if they are a full-time worker, part-time worker or casual worker who has been with their employer at least 12 months. Sole traders are also eligible. Importantly, the subsidy is available to individuals who were employed as of 1 March 2020, meaning eligible employees who have been stood down since 1 March 2020 will still be eligible to receive the subsidy. Individuals who are not eligible for the JobKeeper payment may be eligible to receive unemployment benefits under the Federal Government’s existing JobSeeker scheme. The JobSeeker scheme provides support to individuals who are unemployed or are unable to work or study for a period of time due to, for example, illness or injury. As of April 2020, payments can range from approximately AUD$1,060.80 - $1,340.10 a fortnight. In response to the COVID-19 pandemic, and to ensure that financial support is provided quickly and efficiently, the Federal Government has made a number of important changes to the JobSeeker scheme. This includes providing all recipients with a ‘Coronavirus supplement’ of $550 per fortnight, increasing the “partner income threshold test”, removing several of the mutual obligation requirements and removing a number of waiting periods. Importantly, individuals are not eligible to receive both the JobKeeper and JobSeeker payments.
provide all employees (including full-time, part-time and casual employees) with a new entitlement of up to 2 weeks’ unpaid pandemic leave if the employee is “required, by government or medical authorities or acting on medical advice, to self-isolate or is otherwise prevented from working by measures taken by government or medical authorities in response to the COVID-19 pandemic in circumstances where the employee is required to work at premises operated by an employer”; and provide for employees, by agreement with their employer, to take twice as much annual leave at half the rate of pay.
Additional entitlements may be provided under applicable industrial instruments, contracts of employment or policies. In the event that these temporary support measures do not prove sufficient and employers need to consider more permanent cost-reduction measures, it may be that companies will have to potentially consider collective redundancies.
Preserving skills, jobs and viability: RUSSIA
The Pre-Emption Group (PEG) has revised its recommendations in relation to non-pre-emptive share issues and now recommends that investors consider supporting issuances by companies of up to 20% of their issued share capital without seeking shareholder approval to disapply pre-emption rights. The PEG recommendation for investors to apply this additional flexibility is in place on a temporary basis and is subject to certain conditions. The announcement is significant because PEG has generally opposed non pre-emptive placings above 5% of issued share capital for general corporate purposes or 10% for specified acquisitions or investments.
Investor guidelines
the UK’s Financial Conduct Authority (FCA) has issued a Statement of Policy confirming its support for the PEG recommendation and highlighting the “simplified prospectus” regime, tailored for secondary issuances. The FCA has outlined a temporary revision to its approach to working capital statements.
FCA statement
Preserving skills, jobs and viability: UAE
Preserving skills, jobs and viability: SOUTH AFRICA
Preserving skills, jobs and viability: US
Preserving skills, jobs and viability: ASIA
Protecting personal data and compliance: UK
Information regarding an employee’s health, such as temperature readings, whether the employee is suffering symptoms of coronavirus, or has been diagnosed as having the virus, is special category data under the GDPR. The Information Commissioner's Office (ICO) has published advice, which notes that data protection law does not prevent companies from taking the necessary steps to keep staff and the public safe and supported during the present public health emergency. But it does require them to be responsible with people’s personal data and ensure it is handled with care. With respect to health data, such as that collected as a result of temperature checking, the collection and processing of this data by an employer may be considered necessary to protect the health, safety and welfare of the individual and other employees, in accordance with the employer’s duty to provide a safe working environment. It should, therefore, fall within the lawful processing condition of being necessary pursuant to obligations and rights under employment law. However, the processing should be limited to the extent truly necessary, and a data protection impact assessment and/or risk assessment undertaken, and an appropriate policy document is also needed. Employers should also give careful consideration to the retention period for any data collected in response to the virus pandemic. The position with respect to temperature checking by other organisations such as building owners/landlords is however less certain from a data protection perspective, despite the fact that such checks are likely to be actively considered by many such organisations. The ICO guidance also flags issues such as accountability, making sure that only the minimum data necessary is collected, and transparency. These should however be standard compliance checks in an employer’s armoury and many of the issues would be flagged and mitigated when undertaking a privacy impact assessment. It would typically be reasonable for an employer to take disciplinary action against an employee who failed to comply with a request to declare if they are experiencing COVID-19 symptoms. In contrast, to discipline an employee for refusing to have a temperature check is unlikely to be reasonable in most workplaces, not least as there could in any event be asymptomatic employees carrying the virus at work. With respect to more general data protection compliance, the Information Commissioner’s previously published statement advising individuals that they should expect delays in companies responding to subject access requests because resources are being diverted elsewhere continues to be relevant. However, this should not be considered by employers to be a waiver of their obligation to respond, but should hopefully provide reassurance that they will not be sanctioned should they be unable to respond within the statutory timeframe due to issues continuing to arise out of the current situation. For further information you can also consult the following blog posts here and here.
Protecting personal data and compliance: SPAIN
Pursuant to the criteria established by the Data Protection Agency in application of the current legal provisions relating to health, labour and, in particular, those relating to occupational health and safety, employers may lawfully take steps to obtain, in compliance with these regulations and with the guarantees established in such regulations, the personal data necessary to guarantee the health and to allow the competent authorities to take the necessary measures to ensure the right to protection of the health of the workforce and to avoid contagion within workplace or spreading infection to other citizens. The company is entitled to hold information to understand if the employee is infected or not, to design, through its occupational health service, the contingency plans that are considered necessary, or that have been required by the health authorities. This information can for example be obtained by asking employees specific questions. However, questions should be limited exclusively to inquiring about the existence of symptoms, or if the employee has been diagnosed as infected by COVID-19, or is subject to quarantine provisions. Circulating extensive and detailed health questionnaires, or including questions not related to the disease would be contrary to the principle of data minimization. This information should be provided without identifying the person concerned in order to maintain his or her privacy, although it can lawfully be transmitted to the competent authorities, in particular health authorities, at their request. The information should be provided in compliance with the principles of purpose and proportionality and always within the framework of the recommendations or instructions issued by the competent authorities, in particular health authorities.
In the context of the Covid-19 health crisis, employers may only lawfully collect personal data, in particular on the health status of their employees, if they comply with certain conditions and must respect the GDPR fundamental data protection principles of proportionality and data minimisation. The data that reveals certain aspects of the physical condition of their employees is considered to be "sensitive" data under the GDPR, and in principle the processing of this kind of data is prohibited, unless the employer is able to rely on one of the ten restrictive exceptions listed in GDPR article 9. These include an employer’s execution of its obligations under employment or social security and social protection laws (e.g. workplace accidents, making declarations to the competent social security organisations etc.).
Prohibition on collecting of health information that goes beyond handling suspected exposure to Covid-19
Protecting personal data and compliance: FRANCE
Employers cannot maintain a file containing detailed information on the health of one or more employees – this type of processing could result in CNIL (the French data protection authority) penalties. In its most recent recommendations on Covid-19, the CNIL reminds employers that they must not violate their employees’ privacy by collecting health information that goes "beyond the handling of suspected exposure to the virus". This means that employers cannot systematically collect general information on the health status of their employees, their close friends and family, or of visitors to the company’s premises, such as:
daily mandatory temperature readings for each employee, temporary employee, or visitor before they can enter the premises, unless specific provisions have been made (the CNIL confirms that the GDPR only apply to automated processing or to non-automated processing that makes it possible to create files: the sole verification of the temperature by means of a manual thermometer at a site entrance, without any trace being kept, or any other operation being carried out does not come under data protection regulations); collection of completed medical forms or questionnaires from all employees (such as information about any symptoms experienced by an employee and/or the employee’s close friends or relatives); medical, serological or screening tests (subject to medical confidentiality).
Measures permitted to protect employee health and safety
At the same time, employers have obligations to protect the health and safety of their employees, and in that context they must set up the means of collecting and distributing limited relevant information. To balance the need to avoid any "general" collection of sensitive data and compliance with the duty to ensure employees’ health and safety, the employer should therefore provide information to its employees on Covid-19 symptoms and require them (each employee) to report individual information through dedicated channels (such HR or a specific department entrusted with collecting such information) of any suspected or confirmed infection, or risk exposure (contact with someone who is ill, trips to a high-risk country, etc.). In this regard, employees should be reminded that they each also have a personal obligation to seek to protect the health and safety of others under article L.4122-1 of the French Labour Code. In this context, the following information can be collected and stored by employers as long as necessary for processing
1
information an employee provides about his or her symptoms; risk exposure; identity, date on which symptoms were reported, and the resulting organisational steps taken by the employer (confinement, working from home, contact with occupational physician, etc.).
Employers have a duty of discretion regarding any health information reported by an employee, and they must make sure that the processing of such information is "secure". If necessary, the employer will be able to communicate to the relevant health authorities the information necessary for any health or medical care of the exposed person. In any event, the identity of the person likely to be infected must not be communicated to other employees.
The CNIL has published recommendations on the processing of personal data and security measures to be implemented by employers and followed by employees when employees work from home. These recommendations are intended to help protect companies from data loss, attacks on their data processing systems by malware and other unauthorized access to their data, and to comply with legal regulations.
1. The storing of data throughout the term of the relevant employee’s employment contract is possible, in order to be able to demonstrate what organisational steps were taken with regard to the employee in cases of suspected or confirmed contamination
Protecting personal data and compliance: GERMANY
Contradicting opinions of the data protection authorities exist in regard to procedures for the collection of health data and temperature checks in the company. In terms of possible measures to be undertaken by employers to protect their employees, the data protection authorities of the Rhineland-Palatinate and Saxony states have published statements on their websites stating that any measures requiring employees to fill out a health questionnaire to report information about their health (with the exemption for information on any recent holidays to risk zones and any contact with suspected persons) and requiring employees to undergo a medical examination, such as measuring body temperatures, are not justified according to German data protection law. Nevertheless, other authorities seem to have taken a different view. For example, the Federal Commissioner of Data Protection and Freedom of Information has published a statement that it should be lawful to ask about the health status of all employees in order to ensure their safety and prevent the spread of the virus. The data protection authorities of the states Hamburg and North Rhine-Westphalia, consider that measuring the temperature of employees prior to entering the premises can be justified on a case-by-case basis. The authority of the state North Rhine-Westphalia recommends adopting an approach after consultation with the employees, the works council and the data protection officer. We have been in direct contact with the data protection authorities and they have expressed their view that, as a general rule, health and safety requirements are likely to prevail over data protection rights, but do not provide a general waiver for privacy compliance. The Conference of the German Data Protection Authorities (DSK) has emphasized this in its current short paper. In the light of the new health and safety regulations which prescribe temperature checks and collection of health data, it is likely that companies will not be considered to have violated any data protection laws as long as the measures are appropriate, the gathering and processing of the data is required in order to mitigate imminent risks for the workforce, the data is only available on a need-to-know basis and is deleted after it is no longer required. Due to the sensitive nature of health data, caution and a case-by-case assessment is advised, which should be documented in writing. Where possible, a works council agreement should be concluded regarding all matters concerning health-data.
Obtaining and processing health data
Duty to inform
As in the case of other highly infectious diseases, the employer's duty to inform its employees about Covid-19 issues arises from the general duty of consideration and care (sec. 241, 618 BGB). The extent of the employer's duty of information depends, amongst other things, on whether or not there is already a (confirmed or unconfirmed) suspicion of a Covid-19 infection within the company. For Covid-19 prevention, many associations recommend establishing an internal communications network so that companies can take appropriate measures depending on the pandemic crisis. The manual of the Federal Office for Disaster Relief and Epidemic Control also contains such recommendation. In order to be in a position to be able to warn the employees on short notice, employers may also request and temporarily store the current private mobile phone number of their employees. However, this can only be with the consent of the employee. There is no obligation for employees to provide private contact details. The collection of private contact data is only permissible for specific and legitimate purposes – in this case, with the aim of reducing the risk of infecting employees. The collected contact data must be deleted by the employer after the end of the pandemic, at the latest.
There exists a general obligation for the employer to inform its staff about risks associated with Covid-19, even where there is not currently a suspicion of an infection with Covid-19. It is recommended that employers issue general information about preventive measures concerning hygiene and safety in the workplace (e.g. washing hands, social distancing and other sanitary measures) as well as guidelines for self-declaration (e.g. recent travel to high-risk areas, symptoms and possible contact with other individuals who may have contracted the disease).
Informing employees without suspected cases
If there is a suspected case of Covid-19 within the company, the employer should inform all employees about the case as quickly as possible. To maintain confidentiality, the infected employee should not be named. At the same time, employees who have been in direct contact with an infected person must be warned and released from work to reduce the risk of cross-infection. Only where absolutely necessary and after consulting with the authorities, should the names of infected persons be disclosed to other employees.
Informing employees in the event of suspected cases of infection within the company
The data protection authority of the state of Bavaria and the state of Saxony-Anhalt have published recommendations on the processing of personal data where employees work from home. These recommendations are intended to help protect companies from data loss, attacks on their data processing systems by malware and other unauthorized access to their data, and to comply with legal regulations. For example, they have provided advice on the fact that it is not advisable to use private devices when working from home, what to consider when accessing data remotely and using cloud storage, and the procedures to be followed in the event of data breaches and that a contact person should be specified. The Federal Office for Security and Information Technology (BSI) has also published recommendations for mobile working, which can be accessed here.
Recommendations on processing data when working from home
Protecting personal data and compliance: ITALY
Employers must guarantee a safe and healthy workplace and, at the same time, respect their obligations regarding privacy and protection of personal data. Some of the most common scenarios where the respect of such obligations may conflict are analysed below. Checks of staff body temperature before they enter the workplace Employers can check employees’ temperature at the entrance to company premises, but they are not permitted to record the data. Employers may only record the fact that body temperature exceeds the temperature established by law (but not the employee’s specific temperature), when it is necessary to document the reasons for refusing the employee access to the workplace. Questionnaires about the employee’s state of health or contact with infected subjects before entering the company premises Only the data necessary, appropriate and relevant to the prevention of infection from Covid-19 can be collected. The employer must avoid requesting additional information regarding the person who tested positive, the specific locations visited or other details relating to her/his private life. The employer can lawfully request a declaration stating that the employee respects the conditions for accessing company premises (see also the comments above in relation to the employers’ obligation to inform employees and visitors on the health and safety provisions applicable in the premises). Employers’ additional disclosure obligations Employers must disclose information on the processing of personal data pursuant to Articles 13 and 14 of the GDPR. That this disclosure may omit information that the data subject already knows. It is advisable to provide this information in writing and to acquire a confirmation of receipt (for example, a signature). Diagnostic tests If, to prevent epidemic outbreaks in the areas most affected by the virus, the competent health authority has issued specific additional measures, including specific diagnostic tests (e.g. COVID-19 swab test), employers must provide maximum collaboration with these. The occupational doctor, in the context of his role in risk assessment and health oversight, may suggest that the company adopt any diagnostic means deemed useful in order to contain the spread of the virus and safeguard the health of workers. To this end, the occupational doctor must take into account the workers’ higher exposure to the risk of contagion. These general preventative measures must be adopted in compliance with the personal data protection principles and in respect of the hygiene measures required by the Ministry of Health. Collection of visitors’ health data When it is necessary for external visitors to enter the company premises, those visitors must comply with all company rules, including the rules for accessing the company premises, such as the measurement of body temperature where this is required by the protocol adopted by the company. In any case, data regarding the body temperature of customers (for example, in the context of large retailers) or occasional visitors, even if the temperature is higher than the threshold indicated in the emergency provisions, cannot be recorded. Furthermore, in the case of employees of third-party companies operating in the same workplace (e.g. maintenance workers, suppliers, cleaners or security) whose Covid-19 swab test results are positive, the contractor must immediately inform the client and both must collaborate with the health authority providing useful information for identifying any close contacts. Internal investigations for the purpose of identifying any close contacts with subjects whose COVID-19 swab test results are positive It is up to the competent health authorities to inform the "close contacts" of the infected person in order to activate the planned prevention measures. The company – upon the request of the health authorities - must collaborate for the identification of any "close contacts" of a person present in the company whose Covid-19 swab test results are positive. This is to allow the authorities to apply the necessary and appropriate quarantine measures, in compliance with the laws applicable at the time. In carrying out these investigations, the employer must avoid disclosing any information related to the identity of the subject whose Covid-19 swab test results were positive. Process of health data within a company Access to health data must be limited only to subjects who absolutely need this in consideration of their role (for example, Human Resources, Health & Safety teams). The identity of infected workers must not be communicated by the employer even to the Workers' Representative for Safety. The collected data, in principle, must not be retained beyond the end of the state of emergency, unless a longer retention period is specifically required by the law.
The General Data Protection Regulation (GDPR) considers any information relating to an employee’s health status, including whether he/she is infected by the coronavirus, as sensitive information. In principle, the processing of such data is prohibited, unless strict conditions are fulfilled and a strict proportionality is safeguarded. Only information which is strictly required for the prevention, detection or handling of the COVID-19 crisis at the workplace may be collected and used with the specific purpose of protecting the health and safety of the employees. The employees concerned should then be provided with transparent information on the processing activities that are being carried out and their main features, including the retention period for the collected data and the purposes for the processing. Taking into account the above-mentioned principles, the Belgian Data Protection Authority advises that an employer cannot for example oblige its employees to fill in written questionnaires regarding recent contacts with (potentially) infected persons and cannot inform the other employees of the names of employees that are (potentially) infected. As indicated above, temperature checks as such could be allowed but should not involve a processing of personal data and should therefore be strictly limited to an instantaneous measurement of the temperature, without registering or processing the data.
Protecting personal data and compliance: BELGIUM
Protecting personal data and compliance: BeLGIUM
Protecting personal data and compliance: NETHERLANDS
The Dutch Data Protection Authority ("DPA") has made it clear that in these special circumstances, saving lives is the top priority, but also explicitly states that in the event of a suspicion of a COVID-19 infection, employers may not process employee health data. Employers cannot therefore lawfully ask employees about the nature and cause of their illness. Only the occupational health and safety service or the company doctor can process such medical information. However, in these special circumstances employers may send employees home when they exhibit symptoms of a cold or the flu, or if the employer has doubts about an employee’s health. In addition, as was always the case, illness absence may be registered and ill employees can be asked when they expect to be back at work. The employer cannot record an employee’s health symptoms, however – that task is reserved for the general practitioner and/or the company doctor.
Protecting personal data and compliance: AUSTRALIA
Health information is considered ‘sensitive information’ under key Australian data protection laws such as the Privacy Act 1988 (Cth). While that act includes an exemption relating to employee records, the exemption has a number of limitations and a recent case found that the exemption does not apply to the collection of personal information. This means that notifications to staff about the collection of their personal information are still required, and in many cases consent is needed to collect sensitive information. There are some exceptions to this consent requirement. Notably, in the current COVID-19 environment, consent is not required if it is unreasonable or impracticable to obtain consent and the collection is reasonably necessary to lessen or prevent a serious or public health/safety risk. This exception also extends to the use and disclosure of personal information, although there are other permitted grounds for use and disclosure which may also be relevant, e.g. personal information can be used or disclosed for:
minimise the personal information collected, used and disclosed in connection with COVID-19 to what is reasonably necessary; only permit access and disclose health information and other sensitive information types on a ‘need-to-know’ basis; consider informing all staff in advance how their personal information may be handled to respond to a potential or confirmed case of COVID-19; protect the security of personal information, e.g. in connection with new remote working technology, which may include conducting a privacy impact assessment on the technology, even where it has already been introduced; note that obligations to ensure data accuracy are heightened where the risks of inaccurate data are greater; and be aware of additional state-based requirements if engaging in surveillance activities (e.g. CCTV, GPS tracking, computer monitoring).
the main purpose for which it was collected; or a related purpose within the individual’s reasonable expectations.
Other recommended steps include to:
Protecting personal data and compliance: RUSSIA
UAE In onshore UAE, whilst there are general legal provisions protecting confidentiality and a right to privacy, there is no specific data protection legislation. Provided such requests are reasonable in scope and nature, an employer can therefore request information from its employees about potential or actual exposure to Covid-19 including whether they have been in contact with an individual who has been diagnosed with Covid-19 and if they have recently returned from one of the red zone countries. In addition, this information is arguably necessary for employers to discharge their duty under the UAE Labour law to provide a safe and secure working environment for all employees. If an employee fails to comply with such reasonable requests for information, they may be subject to disciplinary actions. However, requesting access to an employee’s medical records is different. It would generally be necessary to obtain an employee’s express written consent to access their medical records. Any employee’s medical records should be dealt with on a strictly confidential basis and only shared with relevant personnel as necessary, e.g. HR and/or relevant members of management. Best practice would be to obtain advance written consent from employees before the details of any medical test or report are shared, even where there is a provision in the employment contract confirming how personal data will be processed within the organisation. DIFC Employers may collect, process and share personal data of employees for any reasonable purpose related to health and safety of their employees, or as required by a Competent Authority, as long as they do not process more than reasonably necessary. Personal data can include, but not be limited to, information regarding their health, travel and / or Covid-19 related symptoms. ADGM The ADGM has issued specific guidance as follows: “As an employer, Data Controllers have a duty to ensure employees’ health and safety, but that does not necessarily mean they may gather unnecessary information about their employees. For example, it may be reasonable in the current circumstances to ask an employee or a visitor if they have visited a particular country or are experiencing Covid-19 symptoms. On the other hand, it would be unreasonable to ask an employee or visitor if they or any of their family members have ever been diagnosed with any other contagious disease. If additional health data is required, employers must ensure that they do not collect any more Personal Data or Sensitive Personal Data than is necessary (note: Sensitive Personal Data includes health information). In addition, employers must ensure that any Person Data or Sensitive Personal Data that is collected is treated with the appropriate safeguards, as specified under the DP Regulations”. “It is unlikely that a company will be required by Health Authorities to share information about specific individuals. However, if this does happen, the DP Regulations do not prevent employers from sharing such information, provided there is a legal basis for the processing of the Personal or Sensitive Personal Data and appropriate safeguards have been met.” “Employers have a legal obligation to ensure the health and safety of all their employees. Accordingly, Data Controllers should keep employees informed about any cases of Covid-19 in their organization and take the necessary measures to keep employees safe. However, employers should avoid naming individuals, if possible, and should not provide any more information than is necessary. Public bodies may also require additional collection and sharing of Personal Data for the purpose of protection against serious threats to public health. This is a legitimate purpose for collecting and processing such Personal Data.”
Protecting personal data and compliance: UAE
Protecting personal data and compliance: SOUTH AFRICA
Americans with Disabilities Act The Americans with Disabilities Act (ADA) requires that any mandatory medical test of employees be "job related and consistent with business necessity" and that any medical information be kept as confidential as possible. The U.S. Equal Employment Opportunity Commission (EEOC) – the agency that enforces the ADA – has provided specific guidance on ADA compliance for testing, employer inquiries, and other prevention measures related to the virus. The Guidance is available here. Key components include: Testing and Temperature Checks. Employers may lawfully mandate Covid-19 testing for employees as part of a screening process without violating the ADA. Employers utilizing these tests must:
Protecting personal data and compliance: US
Ensure the tests are accurate and reliable; Stay abreast of the latest public health authority instructions and guidance on testing; the guidance specifically cites and links to the Food and Drug Administration's guidance on safe and accurate testing standards; Consider false positives or false negatives associated with the particular test used; and Understand accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.
Questioning employees about symptoms or an employee’s family member. An employer can ask if an employee is experiencing Covid-19 symptoms. Employers can also lawfully ask whether the employee has had contact with anyone diagnosed with Covid-19 or who has been showing symptoms of Covid-19. Employers must avoid specifically asking about family members, but instead phrase the question more generally. Confidentiality of Medical Information. All medical information about a particular employee must be stored separately from the employee's personnel file, thus limiting access to this confidential information. Accordingly, any data collected, whether it be answers to questions about symptoms, temperature readouts, results of tests, etc., must be kept separate from the employee’s general personnel file. While the information must be kept as confidential as possible, employers may disclose the name of an employee with Covid-19 to a public health agency. Other Laws and Considerations The Health Insurance Portability and Accountability Act of 1996 The federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) requires "covered entities" to implement measures to protect the privacy, security, and integrity of protected health information. The scope of HIPAA is often misunderstood. Covered entities are defined as health care providers, group health plans, health care clearing houses and the business associates of these entities. Because of this limited definition, HIPAA is generally not a significant concern for the majority of employers. State Data Privacy Laws Several state data breach statutes and privacy laws require that personally identifiable medical information be secured from unauthorized access or breach. In addition, as states and technology companies begin to develop plans for contact tracing related to the virus, the role employers will be expected to play in these plans will become clearer. These tracing efforts, which may involve app-based tracking – could implicate state laws regarding privacy and data protection. For example, Illinois has a Biometric Information Privacy Act, which restricts employers from collecting, using or processing biometric identifiers unless certain strict requirements are met. Depending on the application identified for use and the specific data collected, this Biometric Act could be implicated. The California Consumer Privacy Act, which the state will begin enforcing on July 1, 2020, raises similar issues.
The Advisory requires employers to obtain certain information from employees, including their travel history, whether they have received a quarantine/isolation order/stay-home notice, whether they have been issued medical certificates for respiratory symptoms; and whether they are a close contact of confirmed cases. Employers should notify employees that the collection, use or disclosure of personal data are for purposes of contact tracing and other necessary response measures to contain the outbreak of Covid-19. Whilst the Singapore Personal Data Protection Act ("PDPA") typically requires the consent of an individual for the collection, use and disclosure of personal data, there is an exception to the consent requirement where the collection, use or disclosure is necessary to respond to an emergency that threatens the life, health or safety of the individual or another individual. As such, employers would be able to rely on this exception to obtain employee personal data insofar as they are collected, used and disclosed for the purposes of containing the outbreak of Covid-19.
Protecting personal data and compliance: SINGAPORE
There are no specific legislation that governs the protection of an employee's personal data. As such, employee personal data may be collected, used and disclosed insofar as they are relevant for the purposes of containing the outbreak of Covid-19. It is recommended to notify employees that the collection, use or disclosure of personal data are for purposes of contact tracing and other necessary response measures to contain the outbreak of Covid-19 prior to data collection.
Protecting personal data and compliance: VIETNAM
As mentioned, an employer is required to notify the officer where any person suspected of being infected of Covid-19 is found at the workplace. To comply with this requirement, employers may need to obtain certain information from employees, including whether they have been issued medical certificates for respiratory symptoms and whether they are a close contact of confirmed cases. Thailand's recently enacted Personal Data Protection Act ("Thailand PDPA") will come into effect in May 2020. While the Thailand PDPA typically requires the consent of an individual for the collection, use and disclosure of personal data, there is an exception to the consent requirement where the collection, use or disclosure is necessary for compliance with law relating to public health. As such, employers would be able to rely on this exception to obtain employee personal data insofar as they are collected, used and disclosed for the purposes of containing the outbreak of Covid-19. Employers should notify employees that the collection, use or disclosure of personal data are for purposes of contact tracing and other necessary response measures to contain the outbreak of Covid-19.
Protecting personal data and compliance: THAILAND
The Privacy Commissioner for Personal Data has issued a media statement (which can be accessed here) and notes the following:
Protecting personal data and compliance: HONG KONG
it is generally justifiable for employers to collect temperature measurements and symptoms of COVID-19 of employees and visitors for the purposes of protecting the health of those individuals; if the collection of data is not covered by the existing privacy notices, a fresh notice must be provided to inform employees of the data collected and the purposes; it will not be considered as a contravention of the Personal Data (Privacy) Ordinance for employers to disclose the identity, health and location data of individuals to the Government or health authorities for the purpose of contact tracing; if an employee contracts COVID-19, the employer may notify other employees, visitors and the property management office without disclosing personally identifiable information of the infected; and employers shall permanently destroy the personal data collected for the purposes of fighting or combatting COVID-19 when there is no evidence suggesting that any employees have contracted COVID-19 or have close contacts with the infected after a reasonable period of time.
RETURN TO THE WORKPLACE
Employers will need to review what measures are available to assist them on a temporary basis during the immediate COVID-19 crisis and, if they satisfy the conditions to benefit from these, take steps to apply for these and implement the measures to the extent relevant and necessary to place their business in the best possible position to navigate the immediate impact of COVID-19.
Employers have a general duty to protect the physical and mental health and safety of employees and their safety in the workplace. These generally include :
General legal requirements and employer health and safety obligations
As Governments unwind lockdown measures, employers must navigate:
health and safety issues (including in relation to mental health) and the latest requirements adapted to the Covid-19 crisis – to protect the workforce and reduce the risk of claims; how to organise the return to the workplace for employees who have been working from home or who have been on partial activity or furloughed; ensuring compliance with data protection requirements in relation to health data collected by employers in the context of COVID-19; how the crisis may have accelerated trends for the future of work.
preventive action in relation to minimising risks which may arise in the workplace; clear information provided to employees and training; organising the workplace in a way which is adapted to the circumstances and risk profile of employees and the company; adapting these measures as and when necessary to take into account any changing circumstances (e.g. the Covid-19 threat) and in order to update and improve the health and safety policies in place.
In certain jurisdictions, in addition to the employer and employee, there may also be other relevant actors who may need to be involved to some extent in the process for drawing up health and safety and return to work policies such as:
the works council, the health & safety Committee; trade unions; and the Company doctor (an independent State-appointed doctor).
Employers will need to work constructively with all of the relevant actors to prevent, anticipate and minimise risks to the health and safety of employees.
Specific health and safety requirements in the context of COVID-19 and practical recommendations for organising the workplace Government guidance on the up to date health recommendations can be accessed here and here. On 3 May 2020, the French Labour Ministry published a National Deconfinement Protocol (the "Protocol") to guide companies in preparation for the relaxing of lockdown restrictions (from 11 May 2020), specifying the actions which should be taken to protect employees in the workplace. It can be accessed here. The Protocol requires that employers must (in order of priority):
RETURN TO THE WORKPLACE: FRANCE
prevent the risk of exposure to the virus; assess risks that are unavoidable; favour measures for collective prevention.
Protective measures include the following (it should be noted that the rules on managing the "flow of traffic" on company premises must take employees and all others into account: customers, suppliers, service providers, etc.):
Guaranteeing that physical distancing can be maintained, i.e. ensuring that each person on site has 4 m² of space, which must enable that person to maintain a minimum distance of 1m from others (in all directions). The requirement to continue to prioritise working from home where this is possible – this must remain the rule for the time being where this is possible, i.e. coming into the workplace should only occur where this is absolutely necessary. If employees' presence at the workplace is necessary, other organisational measures must be planned to limit the risk of peak periods and high concentrations of staff, and thus to ensure that the physical distancing rules can be maintained, in particular by:
staggering working hours; sequencing of tasks; defining circulation routes within the workplace, to ensure minimum physical distances are maintained; organising circulation within the premises (putting in place floor markings, safety ribbons, blocks, barriers, etc.) with defined directions for arrival and for departure, and staggering break times as far as possible; providing each person working at the organisation with information about the new rules for circulation, posting the rules of use for each area. The wearing of masks at work is only recommended when distances cannot be maintained. Health workers aside, employers may provide FFP1 masks or alternative, non-medical grade or "consumer" masks designed in the context of the pandemic. Employers may also decide to implement the wearing of consumer grade masks if they choose (but this is not mandatory, provided social distancing can be maintained).
The Government’s current recommendation is to avoid the wearing of gloves as a general rule, because gloves "give a false sense of security", instead becoming vectors for transmitting the virus. Companies are not permitted to organise screening campaigns (e.g. automatic temperature testing) for their employees, although certain employers have already announced that they would like to implement widespread temperature screening. See also the France overview for protecting personal data and compliance available in the Protecting personal data section. On the other hand, companies can lawfully incite their employees who have symptoms to refrain from attending the workplace or to leave it immediately if the symptoms begin while they are at work, and to consult a doctor. Specific measures must be planned, for example, for situations where third parties enter the premises for a specific task (deliveries, repair jobs, etc.), for company departments likely to receive visits from other employees, or in common areas. These include:
clear marking of the contours of the relevant work area; arranging the visits/work by appointment where possible.
Temperature checks before entering the place of work are currently not mandatory, and in fact are not recommended by the Government, and employees have the right to refuse. However employees can lawfully be encouraged to take their own temperature and generally to self-monitor for the appearance of symptoms that suggest a possible COVID-19 infection. Companies can organise temperature checks for those staff entering the premises as part of a global set of precautionary measures. However these procedures must, in that case:
Comply with the provisions of the French Labour Code, in particular those pertaining to internal company rules; be proportionate to the objective of protecting health and safety; offer all required guarantees to affected employees in terms of prior information, non-storage of personal data, and the consequences for site access; if temperature checks are used, these must be consistent with preserving employees' dignity, and ensure that employees are informed of the checks beforehand.
The Protocol also sets out conditions for cleaning and disinfecting workplace premises. The Protocol defines specific best practices for different parts of company premises: entrance, waiting areas, break rooms, meeting rooms, office open space, parking, etc.
Dealing with employees who are identified as potentially suffering from COVID-19 symptoms whilst at work Employers must:
work with the Company Doctor (Médecine du travail) to draft specific procedures for immediately dealing with employees who experience symptoms, in order to quickly isolate them in a room specifically assigned for that purpose and ask them to go home and contact their usual doctor; and develop a "matrix of contacts and risk levels" ("at risk" or "minimal risk") to facilitate the identification of contacts should a confirmed case of Covid-19 occur.
The procedure to follow in this case must be based on three guiding principles:
isolation protection identifying signs of severity.
Other practical recommendations (not referred to in the Protocol) The following further practical guidance is not expressly referred to in the Protocol but which are also helpful in seeking to prevent infection and therefore also potential risks for employers: Travelling to work
if possible, provide gloves and mask to employees who have to travel to work using public transport; for those employees where this is possible, encourage use of their own car to travel to work to avoid public transport; discourage car-sharing by more than 2 employees (if car share is used, the passenger should sit in the back seat diagonally opposite the driver to comply with social distancing); adjust working hours to allow employees to miss the rush hours (earlier/later start and finish times, but still respecting the maximum working hours permitted each day). It may of course be very difficult however to anticipate which will be the peak hours.
Access to the workplace
Facilitating access to / exit from the premises without contact:
use of automatically opening doors, deactivate turn-styles that require touch, block open the main entrance/exit door during working hours; remind employees only to use the lift alone, or not more than 2 persons; reception staff to wear masks if possible or ensure social distancing rules are complied with:
avoid touching ID – have the visitor show the ID to the reception staff; disinfect temporary passes after each use; ensure hand sanitisers are available at the entrance/exit/lift/badging access points; put in place clearly visible signs to notify visitors of the health and safety procedures and measures in place on site.
Organisation of individual offices/open plan work spaces:
again, encourage continued homeworking where possible; reduce the occupancy of individual offices by more than one person as far as possible or at least ensure social distancing rules are complied with; in open plan spaces, ensure work-station spacing respects social distancing guidelines; this may require employees attending the office by rotation / on a part-time basis (e.g. one week at the office, one week at home or mornings in the office/afternoon at home for 50% of the workforce and the reverse for the other 50%);
Canteens/kitchen spaces
temporary close spaces used for staff restauration; employees to use and wash their own mugs; consider deactivating coffee machines/any other machines used by employees (kettles etc.); if canteens (spaces for employees to eat their own prepared lunches) are not closed, ensure employees respect social distancing.
Seek to avoid the use of photocopiers and other machines which require touch – favour sending documents electronically and limiting printing. Avoid internal meetings / other gatherings of employees – favour the on-line meetings and contact and limit external business meetings and trips to the minimum necessary. Train and inform the employees about the health and safety measures which are in place:
Signs to remind employees to observe the measures implemented Notices on cafeteria/kitchen/common spaces to comply with social distancing rules
Can the employee refuse to come to work? The employer does not strictly have an obligation to guarantee the total absence of any risks for employees, but simply to avoid these as far as possible and if the risks cannot be avoided, to regularly evaluate them, in particular based on government regulations, in order to take all necessary measures to protect the employees who may be exposed to risks. Pursuant to article L. 4131-1 of the French Labour Code and following of the French Labour Code, an employee can lawfully withdraw their labour only if he/she reasonably considers that to continue to work represents a serious and imminent risk for his/her life or health. The employee must notify the employer of the situation. This is an individual and subjective right. The right to withdraw labour cannot however create for another employee a new situation of serious and imminent danger (article L. 4132-1 French Labour Code). No sanction can be imposed on the employee for a legitimate exercise of his right to withdraw labour in such circumstances and the employer cannot require the employee to resume work if the serious and imminent danger persists (in the event of a dispute in relation to the reality of this, this will ultimately be determined by a Court). An employee who unreasonably withdraws his labour can be subject to a legitimate sanction (this could potentially either be a salary retention or dismissal for cause, depending on the circumstances). Whether or not a situation constitutes a serious and imminent danger is determined on a case by case basis. Any danger susceptible to cause an accident or illness leading to death or which may result in a permanent incapacity or temporary prolonged incapacity and which is imminent or any danger which is susceptible to arise suddenly would fall into this category. The simple fact that there is currently a global pandemic does not however, of itself, it not likely justify a withdrawal of labour – the employee must be able to demonstrate a serious and imminent risk to their life or health. In the absence of an employee being able to demonstrate such fact, if they refuse to attend work without a valid reason (e.g. sickness certificate), this could therefore legitimately give rise to a sanction such as deduction of salary or ultimately dismissal for gross misconduct (unauthorised absence). Are masks legally required to be worn? With effect from 11 May 2020, these are required to be worn in public transport. Currently these are not legally required to be worn in the workplace unless social distancing requirements cannot be complied with. In practice however many employers are asking employees to wear masks in the common parts of premises (reception areas, lifts, corridors etc.). The role of the employee representatives in the health and safety planning Where a CSE is in place, employers should attempt to work constructively together with the elected employee representatives in developing health and safety protocols put in place to deal with the Covid-19 crisis. The CSE has a specific role in this regard and must be informed and consulted in advance in relation to measures relating to working conditions. In practice, this means the CSE should be informed and consulted in relation to the employer’s Covid-19 health and safety protocols. The Labour Inspector can be accompanied by a member of the CSE during a visit to the premises if he/she so wishes (article L 2312-10 French Labour Code). Psychological support measures for employees Employers also have an obligation to take measures to protect the mental health of their employees as well as their physical health. This period may have created particular challenges for employees for a number of reasons, leading to an increased need for support measures to be implemented to also protect mental health, including for example in the following circumstances:
where employees teleworking, potentially for the first time, which may give rise to:
difficulties in ensuring a work-life balance - the risk of feeling unable to disconnect from electronic devices either through personal or perceived employer pressure to be "over-available"; stress based on fear of under-occupation and the impact this may have on their future within the company and potential redundancy; difficulties in juggling child-care and other family commitments and work commitments; stress from IT and practical issues (inadequate equipment, non-ergonomic workspace etc.) – some employees teleworking will be doing this for the first time in jobs which are not well adapted for teleworking and with little or no preparation or training.
Employees who have been placed on partial activity and/or who are concerned about future potential restructuring within their company.
Practical support measures can include:
regular individual contact – team meetings, individual catch-up calls etc. and clear communication to all employees on the company’s approach and strategy to the crisis; encouraging employees to take some holiday; setting reasonable expectations as to the work required and ensuring these are clearly understood by the employee, their colleagues and manager; facilitating a good IT infrastructure to the extent possible; providing a helpline for employees to seek external and confidential support and advice; being alive to any employees who may appear to be particularly suffering and taking action quickly to support them.
Risk of claims – from employees or trade unions/employee representatives The recommendations for ensuring a safe workplace are designed to seek to avoid the risk of any successful challenges to the employer’s health and safety response to this crisis. The risk of claims cannot however be excluded. How can claims be brought? By whom? A breach of its duty of care by the employer can give rise to an increase in the level of benefits paid to the employee, potentially and a civil action for damages for strict liability (faute inexcusable) if the employee – or his or her estate (in the event of the employee’s death) – demonstrates that:
the employer should have been aware of the risks to which the employee was exposed; and the employer failed to take all necessary measures to protect the employee from such risks.
Pursuant to French case law, the employer may potentially be able discharge its strict liability obligations if it demonstrates that the accident was caused by an act of God, that the fault or act of the employer did not intervene in causing the accident, or upon showing that the employer has taken all the appropriate measures to prevent such accident. Potential sanctions In addition to civil liability, possible criminal and administrative sanctions may be imposed by the competent authorities. Data protection restrictions on collecting and retaining employee health data and best practice See also the France overview for protecting personal data and compliance available here.
Specific health and safety requirements in the context of COVID-19 and practical recommendations and considerations for organising the workplace Under Belgian law, an employer has a general duty of care towards its employees and needs to ensure the health and safety of its employees at the workplace at all times (article 20 Law regarding Employment Contracts and article 5 Law regarding wellbeing at work). Although telework is still strongly recommended for functions for which this is possible, as from 4 May 2020 non-essential Belgian businesses are also allowed to restart activities at the workplace, on the condition that the rule regarding physical distance (1.5 meters between each person) is respected and that other protective measures are taken. A general guide has been published at national level that contains practical, technical and/or organizational recommendations on how to implement such protective health and safety measures at the workplace when restarting business after the COVID-19 lockdown (“General Guide”). This General Guide includes, amongst others, the following measures:
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Measures regarding the information of employees and external parties (customers, suppliers, clients, sub-contractors, visitors, freelancers, etc.) on the applicable health and safety measures; Recommendations regarding possible instructions and training to the employees; Practical recommendations to implement the rule regarding physical distance, e.g. by implementing a circulation plan in order to respect a maximum physical distance in the companies’ premises; Hygiene measures and precautions, such as the use of hand gel, methods and means for washing hands, ventilation of workplace, ensuring the hygiene of work equipment, etc.; Recommendations on how to move safely from and to the workplace; Instructions on the organization of different shared work areas like changing rooms, sanitary facilities, rest and lunch facilities, etc.
Apart from the measures provided by the General Guide, Belgian employers should take into account additional measures provided at sector-level and/or at the level of the company itself (if any). When choosing and implementing the measures provided by the General Guide at company-level, the employers should involve the employee representative bodies at company level (in the first place the health and safety committee, but depending on the content of the envisaged measures or the possible absence of a health and safety committee, possibly also the works council and/or the union delegation). Furthermore, both the internal prevention advisor and the external service for prevention and protection at work of the company should be involved. There is no specific legal ground that allows a Belgian employer to perform temperature checks on its employees. Moreover, the Belgian federal public service of work has advised that temperature checks are not the most suitable/feasible/trustworthy measure to prevent the spreading of the COVID-19 virus at the workplace and that social distancing and hygiene-related measures at the workplace are seen as substantially more important. Based on the abovementioned general duty of care of the Belgian employer and depending on the factual circumstances, an introduction of temperature checks could be envisaged (provided strict corona-regulations are imposed by the Belgian regulators). In this case, the following elements should all be taken into account:
the health and safety committee at company level should be informed on the envisaged measures regarding temperature checks prior to their implementation so it can give its advice; the labour doctor should be involved in determining the specific conditions/modalities regarding the temperature checks. It is also the labour doctor who has to perform the checks, as these cannot be performed by someone who does not qualify as a doctor (e.g. security personnel); the temperature checks cannot qualify as a processing of personal data (GDPR) and should therefore be strictly limited to an instant measurement of the temperature, without registering or processing the data; in practice, a transparent and clear information of the individual employees regarding this measure is important to obtain a common understanding, acceptance and compliance, as an individual employee always has the right to refuse a temperature check; measures regarding social distancing (at least 1.5 metres) and hygiene related-measures should continue to be complied with (temperature checks can thus only be used as a possible additional measure).
Dealing with employees who are identified as potentially suffering from COVID-19 symptoms whilst at work Based on the above-mentioned duty of care, a Belgian employer must take measures when an employee has been identified as potentially suffering from COVID-19 symptoms. If an employee has COVID-19 symptoms, he/she should not come to the workplace, stay at home and contact his/her treating doctor. If an employee has COVID-19 symptoms whilst being present at the workplace, he/she should leave the workplace if the person is able to do so independently (not by public transport). If the person is not able to do so independently, it is advisable to contact close family in order to ensure transportation and/or the treating physician or in more urgent cases the emergency medical services. If the employee cannot leave the workplace immediately, a separate room should be reserved for the isolation of the employee and the employee should be provided with a mask. The labour doctor should be involved to analyse the situation. Also, the necessary hygienic measures have to be taken to immediately disinfect and clean the premises and work equipment. It is advisable to introduce a clear procedure implementing the aforementioned practical measures at company level together with the health and safety committee, the prevention advisor and/or the external service for prevention and protection at work. The employer should also ensure that its employees are thoroughly and repeatedly informed in advance of such procedure and of the measures that are applicable within the company. An employee with COVID-19 symptoms who is sent home, can be put on temporary unemployment due to force majeure-corona and receive unemployment benefits (as long as this specific force majeure-corona procedure continues to be applicable). Other practical recommendations Also after 4 May 2020, although no longer mandatory, the Belgian regulator considers telework as a preferred measure for non-essential businesses. Working from home should therefore be encouraged. Can employees refuse to come to work? In principle, employees who are able to work – and who cannot justify their absence by way of a medical certificate from the treating physician – cannot refuse to come to work. Such refusal would imply a fault by the employee and could result in sanctions and eventually even a possible termination of the employment agreement by the employee. It can of course be agreed with the employer that an employee can for example take vacation days or telework in order to limit a possible contamination risk. The above is without prejudice to the general duty of care of a Belgian employer to take all preventive health and safety measures at the workplace, as outlined above. Are masks legally required to be worn? Under the current corona-regulations in Belgium (as applicable on 14 May 2020), it is not strictly mandatory to wear a face mask at the workplace, as long as a physical distance between the employees and other persons of 1.5 metres can be guaranteed. Based on its obligation under Belgian law to ensure the health and safety of its employees, a Belgian employer could however justify a requirement for its employees to wear a (face) mask as an additional safety measure. Before introducing such measure, an employer should involve the health and safety committee (if any) and the labour doctor in determining the specific conditions regarding the use of the mask in the company. As from 4 May 2020, every employee who uses public transport to come to work (train, tram, bus) is legally required to wear a (face) mask and/or any other alternative out of fabric that covers both the mouth and nose. The role of employee representatives in the health and safety planning As indicated above, when choosing and implementing the measures provided by the General Guide or other health and safety measures regarding the prevention of COVID-19 at company-level, the employers should proactively involve the employee representative bodies at company level: in the first place the health and safety committee, but depending on the content of the envisaged measures or the possible absence of a health and safety committee, possibly also the works council and/or the union delegation (in accordance with the respective competences of these employee representative bodies). Psychological support measures for employees Employers also have an obligation to take measures to protect the mental health of their employees as well as their physical health. This period may have created particular challenges for employees for a number of reasons, leading to an increased need for support measures to be implemented to also protect mental health, including for example in the following circumstances:
where employees teleworking, potentially for the first time, which may give rise to :
Risk of claims – from employees or trade unions/employee representatives The recommendations for ensuring a safe workplace are designed to seek to avoid the risk of any successful challenges to the employer’s health and safety response to this crisis. The risk of claims cannot however be excluded. How can claims be brought? By whom? If the employer fails to comply with the national COVID-19 regulations at the workplace, heavy sanctions could possibly be applicable. An employee – possibly after having involved the health and safety committee – could contact the social inspection services or the local police services, who are competent to monitor compliance with the afore-mentioned regulations, and eventually a claim could be filed before the labour courts. Potential sanctions Non-compliance with the regulations regarding the health and safety of employees at work could in theory result in either a criminal fine of EUR 800 - EUR 8,000 or an administrative fine of EUR 400 - EUR 4,000. Should an employee suffer damages due to such non-compliance, the employer could incur either a criminal sanction of an imprisonment of 6 months up to 3 years (unlikely in practice) and/or a criminal fine of EUR 4,800 - EUR 48,000 or an administrative fine of EUR 2,400 - EUR 24,000. A judge, as well as the competent government authorities, could further impose a temporary (partial) prohibition to exploit the Company, as well as a (partial) closure of the Company for a certain period. Data protection restrictions on collecting and retaining employee health data and best practice See also the Belgium overview for protecting personal data and compliance available here.
Specific health and safety requirements in the context of COVID-19 and practical recommendations and considerations for organising the workplace Government guidance on the up to date health recommendations can be accessed here and here. In response to COVID-19, the Federal Ministry of Labour and Social Affairs issued new occupational health and safety standards effective as of 16 April 2020. These standards apply directly and immediately to all companies where work is still being carried out or is being carried out on site again after a pause. The safety standards impose a multitude of precise obligations for employers, inter alia:
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The organisation of the workplace must be adjusted to comply with social-distancing requirements, e.g. multiple occupancy of rooms should be avoided. Generally a distance of at least 1.5 metres should always be maintained between individuals. Where this is not possible, protective measures must be taken (e.g. wearing masks). Sufficient ventilation must also be ensured in the workplace. Working from home should remain the norm where this is possible. The use of walkways in and outside the buildings must be adapted so that sufficient social distancing can be maintained. In high traffic areas in the workplace, protective distances between standing areas should be clearly marked, e.g. with adhesive tape. Occupancy rates of work areas and shared facilities must be reduced by putting in place measures such as staggered working and break times, operating in shifts if necessary etc. Business trips and in-person meetings should be reduced to the absolute minimum. Alternatively, telephone or video conferencing facilities should be used. Physical meetings should only be held where absolutely necessary and provided there is sufficient distance between the participants. Increased hygiene measures must be implemented, e.g. antibacterial liquid soap and disposable paper towel dispensers and sufficient cleaning facilities must be provided, hygiene measures regulations on food distribution must also be implemented. All work clothing must only be exclusively used on an individual basis. Work clothing must be stored separately from personal clothing. Work clothing must be cleaned regularly. External access for visitors must be kept to a minimum if possible. Contact details of visitors, the time of entering or leaving the workplace / premises must be documented. Visitors must also be informed about the measures currently in force within the company to protect against COVID-19 infections.
All preventive and occupational safety measures implemented must be communicated comprehensively within the plant/company. The occupational health and safety standards are not directly binding, however, the labour courts will use them to assess the employer's duty of care in the event that the employees' health is impacted and non-compliance with these can therefore lead to significant potential claims and financial risks for the employer. In severe cases violations may also result in plant and office closures. On 6 May 2020, the Federal Government and the Federal States issued a protocol on further liberalisation of the current lockdown, which reiterates the importance of safety standards at workplaces. The most important rule in all areas remains the maintenance of a minimum distance of 1.5 metres from other people. The Federal and State Governments have also provided that the local authorities would react immediately with new restrictions if there is another rapid increase in the infection rate in the region. Any chains of infection that arise in the plant/company must be identified quickly. Therefore every company in Germany is obliged to implement a hygiene protocol following an adapted risk assessment and operational pandemic planning. The protocol requires the employers to provide for the following:
Unnecessary contact within the workforce and with customers must be avoided as far as possible; General hygiene measures must be implemented; and The risks of infection must be reduced, and if necessary contacts need to be minimised by special hygiene and protective measures.
Dealing with employees who are identified as potentially suffering from COVID-19 symptoms whilst at work One of the most important obligations for employers is to ensure that persons with respiratory symptoms or fever are not present on company premises. The employer must establish a procedure for immediate identification of suspected COVID-19 cases. Fever, coughs and shortness of breath may be signs of infection with COVID-19. Contrary to the situation in France it is further recommended to conduct contactless temperature checks for all persons entering the company premises. The legality of this has been confirmed by the German data protection authorities in some cases but a case-by-case assessment is required. See also the Germany overview for protecting personal data and compliance available here. Employees and visitors with symptoms must be asked to leave the premises immediately or to stay at home. Other practical recommendations Similar to the situation in France, the state authorities in Germany have to date only expressly prescribed limited practical guidance on organising the workplace and recommendations which are also helpful in seeking to prevent infection and therefore also potential risks for employers. Generally all safety measures that help to reduce the risks of infection and protect employees at the workplace are recommended, i.e. increased hygiene measures, measures that help to enable or facilitate maintaining social distancing and procedures that enable identifying possible infection chains quickly, so that the infected person can be isolated from other employees. As the employer is obliged to provide masks if the required minimum distance of 1.5 meters cannot be guaranteed at the workplace in Germany, the training and information of the employees about the health and safety measures which are in place must also include the obligation to wear masks, especially in open plan work spaces, the cafeteria, kitchen and other common spaces. For details regarding practical recommendations please refer to the section for France in Data Protection part of the Cornerstone here, as similar practical recommendations apply for Germany. Can employees refuse to come to work? Similar to the situation in France, the employer does not strictly have an obligation to guarantee the total absence of any risks for employees at the workplace, but simply to avoid these as far as possible. An employee who unreasonably withdraws his labour can be subject to legitimate sanctions (e.g. a warning letter or termination of employment). Employees may only lawfully refuse to attend the workplaces in specific circumstances if these can be proven by them through medical documentation, where possible, and / or through some other type of evidence. Without an occupational ban by the competent authorities (sec. 30, 31 German Protection against Infection Act (Infektionsschutzgesetz)), the employee may only refuse to perform work if there is an objectively significant health risk. These requirements are, however, very restrictive and will only exist in very few cases. This may be evidenced for example if an employee is requested to go on a business trip to an area covered by a travel warning issued by the Federal Foreign Office or guidelines by other official authorities. Where employers violate the guidelines as described above and this leads to a direct threat of infection for the individual employee, there may be cases where a labour court could find the refusal to come to work reasonable. However, a case by case assessment must be undertaken. A right to refuse to perform work also exists under other circumstances. This is the case, for example, if the requirements of sec. 616 German Civil Code (Bügerliches Gesetzbuch – "BGB") are met. According to sec. 616 BGB, an employee does not lose his/her right to remuneration when he is prevented from working for a relatively short time and the reason was not caused by the employee's own fault. Common cases are when small children have to stay at home due to closed childcare and no replacement can be found (limited to up to a few days). Another case is sec. 2 para. 1 Nursing Time Act which gives the employee the right to stay at home under continued pay in the case of an acute care situation of a close relative (limited to ten days). Employers can require their employees, if strictly necessary, to attend their workplaces. However, as still encouraged by the official authorities, employers should ask employees to work from home where possible. Are masks legally required to be worn? For the time being there is no nationwide obligation in Germany to wear protective masks. However, all federal states have now decided in favour of an obligation to wear mouth and nose masks in certain public areas - especially in public transportation and while shopping. At the workplace the employer can regulate the wearing of masks for employees on a binding basis within the framework of a works council agreement. Even without the conclusion of a works council agreement, the employer has the right, to require the wearing of masks at its (reasonable) discretion. However, the masks must be procured and provided by the employer. The employer is obliged to provide masks if the required minimum distance of 1.5 meters cannot be guaranteed at the workplace. The role of employee representatives in the health and safety planning The works council has a right of co-determination in cases of occupational health and safety pursuant to § 87, Subsection 1, No. 7, German Works Constitution Act (Betriebsverfassungsgesetz). The employer is obliged to seek advice from the occupational safety specialists and company doctors on the implementation of necessary infection protection measures and coordinate with interest groups. If the company has an occupational health and safety committee, this committee should coordinate the implementation of additional infection prevention measures in a timely manner and provide support in monitoring their effectiveness. Psychological support measures for employees Employers also have an obligation to take measures to protect the mental health of their employees as well as their physical health. This period may have created particular challenges for employees for a number of reasons, leading to an increased need for support measures to be implemented to also protect mental health, including for example in the following circumstances:
Risk of claims – from employees or trade unions/employee representatives The recommendations for ensuring a safe workplace are designed to seek to avoid the risk of any successful challenges to the employer’s health and safety response to this crisis. The risk of claims cannot however be excluded. How can claims be brought? By whom? In the event of violations of occupational safety or health regulations which result in health damages for the employees, civil claims can be brought by the employee, as these violations are also to be regarded as employer's contractual breach of duty of care (secs. 280 para. 1, 241 para. 2 BGB). These claims can be brought before the labour courts. Visitors that are legitimately on the premises may also bring civil claims (sec. 823 BGB) before the civil courts if they are harmed and the liability for this is attributed to the company. Potential sanctions In addition to civil liability, possible criminal and administrative sanctions may be imposed by the competent authorities. If health damage or even the death of the employee occurs as a result of a violation of occupational safety or health regulations, the violation of these special regulations, regularly constitutes the violation of the duty of care required by the provisions governing negligent bodily harm (sec. 229 German Criminal Code (Strafgesetzbuch)) and negligent killing (sec. 222 StGB). In addition, if the employer is regarded as a guarantor as a result of the employer's duty of care within the meaning of sec. 618 para. 1 BGB, criminal liability of the employer may be triggered. This can be the case for example in the event of a failure on the part of the employer to comply with accident prevention regulations. It cannot be excluded that some of the safety standards which have to be implemented in the light of COVID-19 may be regarded as provisions for which the employer acts as guarantor of employee safety. The occupational health and safety standards are a guideline for the supervisory authorities or supervisory services when advising and monitoring companies, for any necessary orders to ensure protection against infection in the event of violations of these standards and, if necessary, for sanctions. If the working environment poses a threat to employees the state authorities can further order a shutdown of the operation. Data protection restrictions on collecting and retaining employee health data and best practice See also the Germany overview for protecting personal data and compliance available here.
The German authorities responsible for occupational health and safety practices and accident insurance institutions can advise companies of any recommended measures and carry out inspections.
Specific health and safety requirements in the context of COVID-19 and practical recommendations and considerations for organising the workplace The "Protocol for the regulation of measures to fight and contain the spread of Covid 19 in the workplace" of April 24, 2020 (hereinafter, the "Protocol") sets out specific guidelines - agreed upon by the Government, employer representatives and trade unions - to help companies in the adoption of anti-contagion safety protocols, aimed at preventing the spread of Covid-19 in the workplace. The amended Protocol is also attached to the Prime Minister’s Decree of April 26, 2020. The Protocol requires employers to:
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Inform employees and visitors about the health and safety provisions applicable in the premises; Companies are required, to ensure that workers and anyone else who enters the company premises, are aware of the directives of the Authorities, by delivering and/or posting specific notices at the entrance and in the most visible areas. In particular, the notice should provide information concerning:
Regulating the access of employees to premises and adopting anti-contagion safety protocols; Companies can check employees’ temperature at the entrance to premises, but are not permitted to record and retain the data other to record the fact that the temperature exceeds the maximum body temperature established by law (but to record the specific temperature), when it is necessary to document the reasons for refusing the employee access to the workplace. The occupational doctor, may recommend the company adopt any other diagnostic measures deemed useful in order to contain the spread of the virus and safeguard the health of workers. Regulating access by external suppliers; Entry, transit and exit procedures must be identified to regulate access by external suppliers and reduce the opportunities for contact with the personnel present on site. If possible, drivers must remain in their own vehicles. It is necessary to allocate/install dedicated toilets for suppliers/transporters and/or other external personnel. Providing personal protective equipment; If the work organization requires working at less than one metre from another individuals, employees must be provided with masks and other protective devices (gloves, glasses, overalls, etc.). Adopt additional hygiene measures, especially in common areas; The Protocol provides the mandatory regular sanitization of all working environments, including workstations and common areas. Access to common areas, such as company canteens, smoking areas and changing rooms can only be permitted for small groups at any given time. Proper ventilation must also be guaranteed, as well as ensuring a minimum space of 1 metre between individuals. Organizing shifts and the working activity to reduce the risk of contagion. Employees must work from home whenever possible. Pursuant to the Protocol, if working from home is not possible, employers must guarantee social distancing of at least 1 metre between each employee. Social distancing at the workplace can be facilitated for example by staggering the entry and exit of employees and by ensuring a rostering plan for employees with the aim of reducing contact as much as possible. In order to further facilitate social distancing, workplaces should also be restructured to minimize contact between employees. Establish a Committee to apply and verify the compliance with the Protocol provisions. See paragraph on the role of employee representatives below.
Dealing with employees who are identified as potentially suffering from COVID-19 symptoms whilst at work Pursuant to the Protocol, in the event that an employee develops a fever (with a temperature above 37.5°) and symptoms of respiratory infection such as coughing, he/she must immediately inform the employer or facility manager, he or she must be isolated and the competent Health Authorities must be immediately notified. The employer must cooperate with the Health Authorities to identify any "close contacts" of the employee who has been tested positive under the COVID-19 swab. During the period of the investigation, the employer may require any possible individuals who have had close contact to cautiously leave the premises, pursuant to the Health Authorities’ indications. Employees in isolation must always wear a mask. Access to company premises for workers who have already tested positive for COVID-19 must be preceded by:
Risk of claims – from employees or trade unions/employee representatives The recommendations for ensuring a safe workplace are designed to seek to avoid the risk of any successful challenges to the employer’s health and safety response to this crisis. The risk of claims cannot however be excluded. How can claims be brought? By whom? Labour Office can, by means of its inspectors, verify whether companies respect the Protocol. In the event that an employee falls sick as result of the employer’s failure to ensure the health and safety at the workplace, he/she could claim compensation before the Labour Court. Potential sanctions In the event the labour office inspectors ascertain that the Protocol’s provisions have not been duly implemented, they can suspend activity until safety conditions are restored. In the event of violation of provisions set forth under the Code for health and safety (Legislative Decree No. 81/2008), inspectors can apply a sanction up to € 6,600.00 for each violation. Data protection restrictions on collecting and retaining employee health data and best practice See also the Italy overview for protecting personal data and compliance available here.
the obligation to stay at home in the case of a fever (over 37.5 °) or other flu symptoms and to immediately contact the family doctor and the health authority; the prohibition on entering or remaining in the company premises if there are potentially dangerous conditions (such as employees exhibiting symptoms of flu, temperature, or who are known to have had contact with people tested positive to COVID 19 in the previous 14 days, etc.) that require the family doctor and the Health Authority to be informed and which require the individual to remain at home; the commitment to comply with the Government and employer rules in relation to access to the company premises (in particular, maintaining social distancing, observing the rules of hand hygiene and maintaining correct hygiene behaviour); the commitment to promptly and responsibly inform the employer of the presence of any flu symptoms during the performance of working activities, taking care to keep an adequate distance from other people; the denial of access to those who, in the past 14 days, have had contact with anyone who has tested positive for COVID-19 or arrived from areas at risk according to WHO indications.
Providing the occupational doctor with a medical certificate which certifies that their swab test results are "negative" for COVID-19, according to the procedures provided for and issued by the local health authorities, and a medical examination carried out by the occupational doctor, in order to assess fitness to work.
Other practical recommendations Travelling to work It is recommended to inform employees who have to travel to work using public transport on the content of the Protocol for containing the spread of Covid-19 in the transport industry, issued by the Transport Minister on March 20, 2020 (the "Transport Protocol"). Pursuant to the Transport Protocol, people who travel using public transport must:
not use public transport if they have symptoms of acute respiratory infections (fever, cough, cold); purchase tickets electronically, where possible; follow the signs and routes marked inside stations or at stops, always keeping a distance of at least one metre from other passengers; use the access doors to the vehicles indicated for the ascent and descent; sit only in the permitted places; avoid approaching or asking the driver for information; during the journey, frequently sanitize hands by using disinfectant solutions; use personal protective equipment.
Can employees refuse to come to work? Employees can only refuse to go to work if the employer has not put in place the minimum measures to prevent contagion. Pursuant to article 44 of Legislative Decree 81/2008 (Code for the health and safety at the workplace), an employee cannot be sanctioned if he/she leaves the workplace or a dangerous area in the event of serious, immediate danger. Are masks legally required to be worn? From May 4, 2020, it is mandatory to wear masks in closed spaces that are accessible to the public, including means of transport, and for all occasions when the maintenance of a safe distance (deemed to be 1 metre) cannot be guaranteed. Some Regions (Tuscany, Lombardy, Friuli-Venezia Giulia, Calabria and the Autonomous Province of Bolzano) have put in place specific Regional Ordinances, requiring individuals to cover both nose and mouth every time they leave their homes. The role of employee representatives in the health and safety planning All companies are required to set up a Committee to monitor the application of the Protocol provisions. Such Committee must include the employer, the company trade union representatives and the employee representatives for health and safety ("RLS").In the event that, due to the particular type of worksite and the system of trade union relations, there is no need to set up committees for individual worksites, a Territorial Committee must be established, composed of the Joint Health and Safety Bodies ("Organismi Paritetici per la salute e la sicurezza"), the Territorial employee representative for health and safety ("RLST") and the representatives of employers and trade unions. Psychological support measures for employees Employers also have an obligation to take measures to protect the mental health of their employees as well as their physical health. This period may have created particular challenges for employees for a number of reasons, leading to an increased need for support measures to be implemented to also protect mental health, including for example in the following circumstances:
Specific health and safety requirements in the context of COVID-19 and practical recommendations and considerations for organising the workplace To date, no specific protocols or official guides have been issued by the Spanish Government. However, a guide setting out good practice has been published ("guía de buenas prácticas") which sets out a series of recommended criteria and which can assist companies to be aware of the steps that should be taken to protect employees when they return to work. This document is available here. These good practices are principally focused on:
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Health of the employee before going to work:
Travelling to the workplace:
Dealing with employees who are identified as potentially suffering from COVID-19 symptoms whilst at work The employee must not attend the work place until he/she is confirmed to be safe from infection. If he/she is unable to work from home, he must contact his doctor to obtain a certificate confirming that he must remain in isolation. The absence is treated as equivalent to an accident at work for the purposes of ensuring payment of a temporary incapacity benefit. The next action to take is to ascertain whether the employee has been in contact with any other employees who may have been infected. Special attention should be given to cleaning and disinfecting any surfaces or instruments that the employee may have touched. Other practical recommendations The employee should not attend the workplace until it is confirmed that he/she is not a risk to others. If he/she is unable to work from home, he must contact his doctor to prove, if necessary, that he must remain in isolation for work purposes and, if this is the case, it will be considered a situation assimilated to an accident at work for the purposes of temporary incapacity benefits. The next action to take is to ascertain whether this employee has been in contact with any other employees who may have been infected. Likewise, while items used by any employee should be routinely disinfected, any surface or instrument that the employee may have touched should be disinfected with special care. Can employees refuse to come to work? Employees cannot lawfully refuse to come to work without just cause. Failure to attend work without a just cause may be grounds for a disciplinary dismissal. "Just cause" includes where the employee may potentially infect another employee for the following reasons:
Risk of claims – from employees or trade unions/employee representatives The recommendations for ensuring a safe workplace are designed to seek to avoid the risk of any successful challenges to the employer’s health and safety response to this crisis. The risk of claims cannot however be excluded. How can claims be brought? By whom? In the event that the employer does not follow recommendations and/or measures to prevent COVID-19 infection, an employee or the employee representatives can report the company to the Labour Inspector. The Labour Inspector can sanction the company ex officio for non-compliance with the obligation to ensure the prevention of risks at work. Potential sanctions Companies could be sanctioned in the event of non-compliance with occupational risk prevention regulations with the following fines: Minor breaches: from €40 to €2,045 Serious breaches : from €2,046 to €40,985 Very serious breaches : from €40,986 to €819,780 Data protection restrictions on collecting and retaining employee health data and best practice See also the Spain overview for protecting personal data and compliance available here.
it is recommended that all employees with symptoms that could be COVID-19 related, do not attend the workplace. for these cases, a safety protocol must be established for the citizen, who should contact his or her local medical centre in order to organise a test for COVID-19.
having symptoms that could be assumed to be COVID-19 positive; living with a person who is COVID-19 positive. having tested COVID-19 positive.
In addition, the employee can lawfully remain absent from work in those cases where, with proof of a medical report, the employees are identified as being sensitive to COVID-19 exposure due to some other health condition (cancer, respiratory diseases, diabetes...) Are masks legally required to be worn? The use of masks is not required by law at this time, except whilst using public transport The role of employee representatives in the health and safety planning Employers must negotiate with the legal representatives of the employees in the implementation of the Health and Safety protocols. Psychological support measures for employees Employers also have an obligation to take measures to protect the mental health of their employees as well as their physical health. This period may have created particular challenges for employees for a number of reasons, leading to an increased need for support measures to be implemented to also protect mental health, including for example in the following circumstances:
Promoting transportation methods that do not involve groupings of employees and guaranteeing social distancing of 2 metres. Using a personal vehicle or taking a taxi/uber/cabify requires cleaning protocols. A mask is required to be worn for travel in public transport.
Organisation of the workplace:
At the workplace, the employer must plan tasks and organise entrances and exits to maintain the recommended social distancing of approximately 2 metres. Where this may otherwise potentially be compromised, working hours should be staggered. Working from home and video-conference meetings are to be used wherever possible.
Organizational measures:
Employees must have access to sufficient sanitary materials and disinfectant. The employer must create and establish protocols as needed.
Recommendations to employees:
Washing hands regularly. Not touching the face or eyes. Maintaining social distancing. Disinfecting with hand sanitiser gel provided by the employer.
Hygiene measures in the workplace:
Drawing up an emergency plan identifying the risk of exposure to the virus from the various activities and specifying the protective measures to be adopted in each case. Ventilation of the facilities at least daily and for at least five minutes. Providing cleaning staff assigned to these tasks with appropriate protection, a mask and disposable gloves.
On April 28 2020 the Spanish Government published the Plan for the Transition to a New Normality ("Plan para la transición para una nueva normalidad") whereby different phases are set out to reactivate the activities and sectors that were limited, as long as a series of health indicators are fulfilled in the different territories. As a consequence, guides of good practices which need to be followed in each of the sectors will be published shortly.
Specific health and safety requirements in the context of COVID-19 and practical recommendations and considerations for organising the workplace Government guidance on the up to date health recommendations can be accessed here. On 17 March 2020, the Dutch Government announced that the Netherlands was going into an ‘intelligent lockdown’. As a result of this, many businesses were forced to temporarily close their doors. Furthermore, the Government requested employers permit their employees to work from home where possible. Since such date, working from home is the new standard for many employees in the Netherlands. On 6 May 2020, the Dutch government announced that certain measures are to be lifted or lightened. As a result of this, many employers are going to be able to resume their activities in the near future. Working from home will therefore remain the standard for the time being where this is possible, with flexibility in relation to the hours worked. Naturally, working from home may not be an option within certain sectors such as for contact-based occupations (like hairdressers, reopening on 11 May 2020), cafés and restaurants (reopening on 1 June 2020) and gyms (reopening on 1 September 2020) as well as many other businesses. For these, and other businesses, the most important condition in order to reopen once again is that they must be able to ensure social distancing of at least 1.5 metres. Furthermore, the government has introduced a number of sector-specific rules, such as:
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for contact-based sectors, that they should see clients by appointment only and assess possible health risks beforehand together with the client; for the hospitality industry, as of 1 June 2020 a maximum of 30 people (including) staff will be allowed to be present in the premises (respecting social distancing rules). As of 1 July 2020 this is likely to be increased to 100 people.
Aside from the aforementioned rule that employees must be able to keep a distance of at least 1.5 metres from others at all times and the sector-specific rules, the Dutch government has not published any other rules or protocols for employers for measures to protect employees in the workplace. Given the general obligation to provide a safe workplace, it is therefore up to individual employers to decide how they ensure this. Our practical recommendations are as follows:
provide face masks for employees and require these to be worn at the workplace; introducing circulation routes within the workplace, to ensure minimum physical distances are maintained; limiting the occupancy of individual offices to one person, as far as possible.
Dealing with employees who are identified as potentially suffering from COVID-19 symptoms whilst at work The Dutch Government has stated that employees can, under certain circumstances, be denied access to the workplace by their employer. Employees also play a part in this: being a responsible employee means that they are expected to assess their own health and to refrain from putting the safety of others in the workplace in jeopardy by attending the workplace if they have any symptoms. Employers may lawfully request employees not to come to work if they have symptoms and can send employees home if they exhibit symptoms whilst at work. Can employees refuse to come to work? If employees are able and allowed to work from home, there is no legitimate ground for them to refuse to work. For some businesses however, working from home is not an option. Pursuant to Article 7:658 DCC and the Working Conditions Act, the employer is responsible for providing a healthy and safe working environment for its employees. If the employer fails in its duty of care, the employer is liable to the employee for any losses the employee incurs in carrying out his/her activities. If the employer complies with its obligations to provide a safe working environment, generally employees will have no legitimate grounds to refuse to come to work. Should an employee nonetheless refuse, the employer may discontinue the payment of wages for the employee, after first having warned the employee. This may however be different, for example:
Risk of claims – from employees or trade unions/employee representatives The recommendations for ensuring a safe workplace are designed to seek to avoid the risk of any successful challenges to the employer’s health and safety response to this crisis. The risk of claims cannot however be excluded. How can claims be brought? By whom? The labour inspection can survey the work place to ensure that the employer is compliant with all regulations regarding health and safety. This includes the measures that apply with regard to COVID-19. Employees can also bring forward claims in case the employer is not compliant with health and safety regulations. Potential sanctions The labour inspection can impose heavy fines on the employer. Data protection restrictions on collecting and retaining employee health data and best practice See also the Netherlands overview for protecting personal data and compliance available here.
The developments with regard to COVID-19 will be closely monitored. Should there be a further spike in the number of cases of infected persons, then the Dutch Government may introduce further measures and adjust its policy.
Are masks legally required to be worn? There is currently no legal requirement for employees to wear masks at the workplace or for employers to provide employees with masks. In general, there is currently also no legal requirement to wear masks in public, other than in the case of public transport, given the difficulty of maintaining social distancing requirement of 1.5 metres. The role of employee representatives in the health and safety planning Pursuant to article 27 of the Works Councils Act, the consent of the works council is needed if an employer intends to adopt or amend arrangements concerning working conditions, working time, sick leave and reintegration. Should an employer therefore for example wish to adapt the working hours of its employees, works council consent is likely to be required. The same applies if an employer wishes to introduce or amend an arrangement with regard to working conditions, for example requiring employees to wear masks. Psychological support measures for employees Employers also have an obligation to take measures to protect the mental health of their employees as well as their physical health. This period may have created particular challenges for employees for a number of reasons, leading to an increased need for support measures to be implemented to also protect mental health, including for example in the following circumstances:
in the case an employee who has underlying health problems that makes him/her more at risk of developing health problems in the event of infection with the virus ; or for older employees.
It will therefore depend on the circumstances of a particular case whether such employees who belong to a vulnerable group can refuse to come to work.
Specific health and safety requirements in the context of COVID-19 and practical recommendations and considerations for organising the workplace An employer is under a statutory duty to ensure, so far as is reasonably practicable, the health and safety at work of its employees, that is, to set up and implement a safe system of work (the employer also has a similar common law duty). The employer must both provide an adequate system and ensure that employees follow it. Compliance with Government guidance will be good evidence of what is reasonably practicable, and is highly likely to set the standard required by the Health and Safety Executive in terms of its enforcement action. However, what is reasonable is inevitably fact-specific and employers should consider if there might be other reasonable steps in the specific circumstances of their workplace. It is also worth bearing in mind that, for many employers, whether or not there is the potential for legal claims will be seen as largely an issue for the future; the priority now will be doing what is required to build workforce and customer confidence. When the lockdown was announced on 23 March 2020, the UK government closed specific businesses and venues. All other employers were asked to "take every possible step to facilitate their employees working from home". Where employees' roles could not be carried out at home and businesses which were permitted to stay open did so, employers were asked to follow social distancing guidelines, including where possible maintaining a 2 metre distance from others and hand hygiene measures. Since then, the guidelines for social distancing have been relaxed slightly and some of the businesses and venues that were closed have been permitted to re-open, for example non-essential retail from 15 June 2020 (see here). On 23 June 2020 the Prime Minister announced changes to lockdown measures and that certain other business types would be permitted to re-open from 4 July 2020 (listed here). The new guidelines for social distancing are “2 metres, or 1 metre with risk mitigation where 2 metres is not viable”. The Government has published workplace guidance covering twelve types of workplace setting:
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Last updated 7 July 2020
Close contact services Construction and other outdoor work Factories, plants and warehouses Heritage locations Hotels and other guest accommodation Labs and research facilities Offices and contact centres Other people’s homes Restaurants offering takeaway or delivery Shops and branches Vehicles (covering couriers, mobile workers, lorry drivers, on-site transit and work vehicles, field forces and similar) The visitor economy
The guidance for each of the different types of workplace follows a broadly similar structure and there are five “main steps” that should be considered by all employers:
Employers will need to carry out COVID-19 risk assessments in consultation with their workers or trade unions, to establish what control measures to put in place. The results of the risk assessment should be shared with the workforce. Employers should consider publishing the results of their risk assessments on their website if possible, and all businesses with over 50 employees are expected to do so. Workplaces should be cleaned more frequently, paying close attention to high-contact objects like door handles and keyboards. Employers should provide handwashing facilities or hand sanitisers at entry and exit points. Ventilation and air conditioning systems may need to be checked. All reasonable steps should be taken by employers to help people work from home. The Government has emphasised that there is no change to the position that everyone who can work from home should still do so. This will cover the vast majority of office workers. Employers should adapt workspaces and processes to maintain 2 metre distances between people wherever possible. The steps to achieve this may include staggering start times, creating one way walk-throughs, opening more entrances and exits, changing seating layouts, avoiding shared workstations, using floor tape or paint to mark areas to help workers maintain social distancing, and putting up signs to remind workers of social distancing. Steps should be taken to avoid people needing to unduly raise their voices, such as avoiding playing music at a level that makes normal conversation difficult . Where people cannot be 2 metres apart, employers should manage the transmission risk. Businesses should first consider whether a particular activity is necessary. If not, the activity should cease. If the activity is necessary, the employer should put in place mitigating measures. The guidelines are now to maintain 2 metres’ separation if possible or 1 metre “with risk mitigation, where 2 metres is not viable”. Mitigating measures could include erecting physical barriers in shared spaces, creating workplace shift patterns or fixed teams to minimise the number of people in contact with one another, and/or ensuring colleagues are facing away from each other and spend the minimum amount of time in close proximity.
If the person with symptoms tests positive for COVID-19, the NHS test and trace service will ask them to share information about their close recent contacts. An individual who is notified that they have had contact with an infected person must then stay at home for 14 days (and will be entitled to statutory sick pay). Employers are asked to keep up to date records of staff contact details and temporary records (for 21 days) of staff shift patterns and of contact details of customers and visitors attending a workplace, to help NHS Test and Trace with requests for that data if needed. As part of the employer's risk assessment, the employer should have an up to date plan in case of an outbreak, nominating a single point of contact to lead on contacting local Public Health teams. A suspected outbreak should be reported if there is more than one case of COVID-19 associated with the workplace. If the local team declares an outbreak, the employer will be asked to record details of symptomatic staff and assist with identifying contacts. Information about the outbreak management process will be provided, covering control measures, staff communications and prevention messaging. If multiple cases of coronavirus appear in a workplace, an outbreak control team from either the local authority or Public Health England will, if necessary, be assigned to help the employer manage the outbreak. Employers should seek advice from their local authority in the first instance. If someone with COVID-19 comes into a workplace, the workplace does not necessarily have to close. Whether this is necessary will depend on how quickly any required deep cleaning can be done. Guidance on cleaning an area after someone with suspected COVID-19 has left is set out here. The general duty to protect the health and safety of other employees means that employers will in most cases need to keep an employee with suspected COVID-19 infection away from the workplace until the risk has passed (whether after 7/14 days or on receipt of a negative test result). The employee can be placed on sick leave and will be eligible for statutory sick pay and potentially contractual sick pay. Employers are obliged to make a formal report to the HSE under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 when an unintended incident at work has led to someone’s possible or actual exposure to coronavirus, a worker has been diagnosed as having COVID 19 and there is reasonable evidence that it was caused by exposure at work, or a worker dies as a result of occupational exposure to coronavirus. Other practical recommendations Employers are already subject to an obligation to carry out risk assessments for other risks in the workplace. It is important to review the approach to pre-existing risks in light of COVID-19 and in particular the social distancing rules, to consider whether any adjustments are needed. Employers also need to maintain appropriate first aider cover notwithstanding heightened levels of COVID-19 sickness absence - see the HSE's guidance here. It is also important that COVID-19 risk assessments are not viewed as one-off tasks but are kept under review as both risks and work activities change, and potentially as more data and scientific evidence becomes available on the characteristics making individuals more vulnerable to serious illness and on what measures may be effective to minimise transmission. The workforce itself will often be in the best position to identify issues and it is important to be sensitive and responsive to any gaps, perceived or real. Some employers are also employing independent health and safety experts to provide advice. The HSE has produced a short guide Working safely during the coronavirus outbreak, Its website also includes toolkits for carrying out assessments and the consultation obligations. Acas has also published guidance on the return to work. Employers should be sensitive to the potential for conflict and resentment where one section of the workforce is returning from furlough and another has worked through the lockdown. Employers should avoid exacerbating the situation by ensuring consistent treatment, for example in terms of dealing with holiday requests. Employers will also need to continue to consider their health and safety duties in relation to any part of the workforce that remains working from home. Employers should continue to monitor their wellbeing and help them stay connected to the rest of the workforce, especially if the majority are now on-site. Employers should keep in touch with off-site workers on their working arrangements including their welfare, mental and physical health and personal security, and provide equipment for people to work at home safely and effectively, for example, remote access to work systems. The HSE has so far taken the view that employees asked to work from home due to the COVID-19 pandemic have been doing so 'temporarily' and so have accepted that a full DSE (display screen equipment) home workstation assessment is not required – see here. However, the Chief Executive of the HSE has commented that it is now becoming clear that some part of the workforce will be working from home for an extended period and therefore fuller home workstation assessments may be needed. The ability to create a safe home working environment for specific individuals may be one relevant factor in determining priorities for the phased returning of staff to the workplace. Can employees refuse to come to work? An employer would need to consider the specific reason why an employee is refusing to attend work and whether it would be discriminatory to refuse home working, take disciplinary action, or withhold pay. Particular care is needed where the employee is in one of the groups identified by Government guidance as clinically vulnerable (including pregnant women) or extremely clinically vulnerable. Many of these individuals may qualify as disabled and therefore entitled to reasonable adjustments, or may be otherwise protected by discrimination law. Alternatives such as furlough under the Coronavirus Job Retention Scheme, allocating alternative home-based tasks, or paid or unpaid leave should be considered. If an employee reasonably believes that there is serious and imminent danger which the individual cannot reasonably be expected to avert, then they could have a claim for unlawful detriment or automatically unfair dismissal if disciplined for refusing to attend work. The danger could be to the employee themselves or to another person, for example if they live with an extremely vulnerable individual and cannot effectively isolate from them. The extent to which the employer has complied with Government guidance, and clearly communicated this to the individual, will be relevant but not necessarily determinative of whether a fear of danger is deemed reasonable. The individual's own risk profile will also be relevant, for example if they are within the clinically extremely vulnerable category advised to shield at home. until 31 July 2020. Employers should also bear in mind that employees who complain about the safety of the working environment may also have protection from detriment and dismissal as a whistle-blower, and may be able to claim interim relief. Consulting on and agreeing what measures should be put in place with the workforce and any unions will be helpful in minimising these situations. Consultation with the workforce in relation to health and safety management is also a statutory requirement, as explained below. Are masks legally required to be worn? Guidance states that employers are only required to provide personal protective equipment (PPE) if that is normally required to protect against non-COVID-19 risks, for example when working with wood dust, flour etc. The only exceptions are clinical settings and certain other identified roles e.g. first responders and immigration enforcement officers. The guidance is that workplaces should not encourage the precautionary use of extra PPE to protect against coronavirus outside clinical settings or when responding to a suspected or confirmed case of coronavirus. Unless the employer is in a situation where the risk of coronavirus transmission is very high, its risk assessment should reflect the fact that the role of PPE in providing additional protection is extremely limited. There is no requirement that employers provide clinical masks or other face-coverings for employees. Equally, it might be viewed as an unreasonable instruction for an employer to insist on the wearing of facemasks (which it would need to provide), although employees may be willing to do so voluntarily. The Government has urged that the supply of clinical masks be reserved for the healthcare sector. However, the Government has accepted that a face covering may be marginally beneficial as a precautionary measure (in terms of protecting others if the wearer is infected but has not developed symptoms) and could be worn in enclosed spaces where social distancing isn’t possible. Employers should support their workers in using face coverings if they choose to wear one and ensure they are used correctly. Their use should not be instead of other more effective measures of mitigating risk (e.g. minimising contact time, using fixed teams, increased hand and surface hygiene). In terms of transport to and from work, individuals are now required to wear a face covering while using public transport. Face-coverings are also recommended if sharing private transport, although this should be avoided if possible. The role of employee representatives in the health and safety planning The key first step for employers planning to resume operations is the required health and safety risk assessment. The guidance states that employers must consult with the health and safety representative selected by a recognised trade union or, if there isn’t one, a representative chosen by workers. This is not the complete picture: in fact where there are employees not represented by safety representatives appointed or about to be appointed by a trade union recognised for collective bargaining, the employer can choose to consult directly with the workforce or through elected health and safety representatives. The HSE has published helpful guidance, Talking with your workers about preventing coronavirus supplementing previous general guidance on the law on Consulting employees on health and safety. Psychological support measures for employees Employers have an obligation to take measures to protect the mental health of their employees as well as their physical health. This period may have created particular challenges for employees for a number of reasons, leading to an increased need for support measures to be implemented to protect mental health, including for example in the following circumstances:
Risk of claims – from employees or trade unions/employee representatives The recommendations for ensuring a safe workplace are designed to seek to avoid the risk of any successful challenges to the employer’s health and safety response to this crisis. The risk of claims cannot however be excluded. How can claims be brought? By whom? Where the enforcing authority, which will be the Health & Safety Executive (HSE) or local authority depending on the type of employer, identifies employers who are not taking action to comply with the relevant public health legislation and guidance to control public health risks, they can take a range of actions including the provision of specific advice to employers through to issuing enforcement notices to help secure improvements, prohibition notices or prosecutions. Failure to ensure a safe system of work is a criminal offence. Breach of the duty to consult employees or their safety representatives over health and safety matters could also lead to HSE enforcement action. The government guidance includes the HSE's contact details for employees to raise concerns. Individual employees are able to bring a claim for unlawful detriment or automatically unfair dismissal (regardless of length of service) if treated less favourably or dismissed for refusing to attend work in certain circumstances (see above) or because of taking part in health and safety consultation. Claims must be brought in the Employment Tribunal, usually within 3 months, and uncapped compensation can be awarded mainly to reflect loss. Individuals may also be able to bring a claim for personal injury where the employer has breached its common law duty to take reasonable care for the health and safety of employees in the workplace. To succeed in their claim, an individual will have to show that the employer breached the duty of care owed to the individual, this caused the injury, and the injury was of a type which, as a result of the breach, was reasonably foreseeable. Claims can be brought in the civil courts, normally within 3 years. However, in many cases it may be difficult to prove on the balance of probabilities that an individual's infection was caused by a workplace breach, given the many other potential sources of infection. Data protection restrictions on collecting and retaining employee health data and best practice See also the UK overview for protecting personal data and compliance available here.
A downloadable notice is included in the guidance documents, which employers should display in their workplaces to show their employees, customers and other visitors to their workplace, that they have followed the guidance. Although the guidance is focussed on safety in the workplace, it also touches upon travel to and from work and suggests steps such as providing additional parking or facilities such as bike racks to help people walk, run, or cycle to work where possible, and limiting passengers in corporate vehicles, e.g. work minibuses, possibly leaving seats empty. There are also measures to manage visitors (including clients, customers and contractors), inbound and outbound goods, and the use of personal protective equipment and face coverings (see below). The guidance also addresses the issue of clinically extremely vulnerable workers and clinically vulnerable workers . For those who are clinically extremely vulnerable (which includes individuals with certain respiratory conditions and cancers) the guidance is that they should not work outside their homes until at least 31 July 2020 (when it is anticipated that shielding will be 'paused'). For those who are clinically vulnerable (which includes individuals with certain pre-existing conditions as well as pregnant women and individuals who are seriously overweight) the guidance is that they should “be helped” to work from home but where this is not possible they should be offered the option of the safest available on site roles, enabling them to maintain social distancing. If their role does not permit social distancing, , employers should carefully assess whether this involves an acceptable level of risk taking into account specific duties to those with protected characteristics (so, for example, expectant mothers are entitled to suspension on full pay if suitable roles cannot be found). The guidance also states that particular attention should also be paid to people who live with clinically extremely vulnerable individuals. Attention is also drawn to the fact that, when applying the guidance, employers must not discriminate, directly or indirectly, against anyone because of a protected characteristic such as age, sex or disability. It states that employers should be mindful of the particular needs of different groups of individuals and suggests that the following steps will usually be needed:
understanding and taking into account the particular circumstances of those with protected characteristics; involving and communicating appropriately with workers whose protected characteristics might either expose them to a different degree of risk, or might make any measures proposed inappropriate or challenging for them; considering whether any particular measures or adjustments are needed to take account of duties under the equalities legislation; making reasonable adjustments to avoid disabled workers being put at a disadvantage, and assessing the health and safety risks for new or expectant mothers; and making sure that the steps taken do not have an unjustifiable negative impact on some groups compared to others, for example, those with caring responsibilities or those with religious commitments.
The guidance states that the employer must share the results of its risk assessment with the workforce and, if possible, consider publishing the results on its website. The guidance goes on to say that the Government "would expect" all businesses with over 50 workers to publish the results on their website, although currently this is not a legal obligation and therefore a decision whether to do so will be influenced by the need to establish workforce and customer confidence and reputational concerns. Unions are highly likely to press for publication – indeed the Trades Union Congress has been pressing (so far, unsuccessfully) for publication of risk assessments to be mandatory in the same way as gender pay gap reporting. The guidance also includes contact details for the Health and Safety Executive (HSE) to facilitate employees raising concerns, for example about suspected breaches of the COVID-19 secure guidelines. Dealing with employees who are identified as potentially suffering from COVID-19 symptoms whilst at work Government guidance states that staff who are unwell with symptoms of COVID-19 should not travel to or attend the workplace. Any member of staff who develops symptoms of COVID-19 (a new, continuous cough, a high temperature or a loss of or change in normal sense of taste or smell) should be sent home (if possible, avoiding the use of public transport) and should arrange to have a test. They should then stay at home for 7 days from onset of symptoms (in the absence of a negative test result). If a member of staff lives in a household, or is in a support bubble, with someone who is unwell with symptoms of COVID-19 then they must stay at home for 14 days in line with the stay at home guidance. Under the test and trace symptom in place from 28 May 2020, when someone first develops symptoms and orders a test, they will be encouraged to alert the people that they have had close contact with in the 48 hours before symptom onset. If any of those close contacts are co-workers, the person who has developed symptoms may wish to (but is not obliged to) ask their employer to alert those co-workers. At this stage, those close contacts should not self-isolate, but they:
must avoid individuals who are at high-risk of contracting COVID-19, for example, because they have pre-existing medical conditions, such as respiratory issues must take extra care in practising social distancing and good hygiene and in watching out for symptoms.
Specific health and safety requirements in the context of COVID-19 and practical recommendations and considerations for organising the workplace General duty of care All Australian employers owe a general duty of care to their workers, which arises under both the common law, and also under a regulatory ‘Work Health and Safety’ (WHS) regime. Complying with this duty requires an employer to have in place arrangements which minimise risks to employees, so far as reasonably practicable. If an employee were to contract COVID-19 at work, an employer may be called upon to demonstrate how its arrangements at work were in place to reasonably mitigate the risk of this (i.e. merely demonstrating a worker contracted COVID-19 will not be sufficient to demonstrate a breach of the duty, instead a regulator or Court will need to demonstrate that a measure was available to an employer, but which was not taken). In short, employers will meet their duty of care by being able to demonstrate that their planning and risk assessments were reasonable, and consistent with government guidance. Employers will need to consider these requirements from a range of perspectives, including:
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giving employees the necessary information, instruction and training about risks associated with COVID-19 to enable them to do their work in a way that is safe and without risks to health; developing safe systems of work, to operate in what is being termed the ‘COVID-safe economy’ by the Australian Federal Government; keeping workplaces in a safe condition, including through workplace hygiene, staffing-levels and responding to outbreaks; and providing suitable facilities for welfare at the workplace, as well as managing psychological risks to workers who may be working from home, or are asked to return to work (each carrying its own stressors).
Need to demonstrate planning and risk assessment Australian employers are now preparing ‘COVIDSafe Plans’ for the gradual return to work of their workers, expected to be gradually phased in over the coming 2-3 months (i.e. up to July 2020). The various Australian governments have produced a wealth of very specific guidance for employers to follow. Our advice is that employers should seek to align their practices as far as possible to this guidance material – it provides a useful measure of what is reasonable, and demonstrates adherence to industry practice. The guidance materials recommend common measures such as:
making sure that good hygiene is practiced, for e.g. promotion of proper and regular hand washing; providing hand sanitisers at convenient locations; regularly cleaning and disinfecting surfaces, particularly doors, handles, lifts, trolleys and point of sale devices; in relation to employees, encouraging those who can work from home to do so, and actively encouraging workers to stay home if they are feeling sick, and encouraging testing by workers if they demonstrate symptoms such as fever, cough, sore or scratchy throat or shortness of breath; and for customer-facing businesses, monitoring and controlling the number of customers in work premises, meeting a ‘4 square metres’ of space assessment for customer areas, and facilitating that customers can stay 1.5m apart in queues and outside business premises.
Dealing with employees who are identified as potentially suffering from COVID-19 symptoms whilst at work If an employer reasonably suspects someone could be suffering from COVID-19, or has been exposed, this creates a health risk at the workplace. To minimise the risk of transmission of COVID-19, Safe Work Australia guidance materials recommend the following steps: Isolate: Prevent the spread by isolating the person from others and provide a disposable surgical mask, if available, for the person to wear. Seek advice: The employer should call their state or territory helpline and follow the advice of public health officials. Transport: Ensure that the employee has transport to their home or to a medical facility. Clean: Clean and disinfect the areas where the person and close contacts have been. Do not use those areas until this process is complete, and use personal protective equipment (‘PPE’) when cleaning. Identify and inform: Consider who the person has had close contact with and, if instructed by public health officials, tell close contacts they may have been exposed to the virus. Follow advice on quarantine requirements. Review: Review risk management controls relating to COVID-19, and review whether work may need to change. Consult workers on WHS issues. Other practical recommendations As an overall observation, we have recommended employers adopt the following general framework for decision-making on COVID-19 risk controls: At all times, act in compliance with (often, rapidly changing) Federal and State laws, and government directions (including Public Health Orders, and the guidance materials published by Federal and State governments), which either mandate or prohibit certain activities. This step will be non-negotiable. Employers, and their Directors and Officers, acquire and keep their knowledge of the pandemic up-to-date, including in relation to contemporary Australian risk controls. Ensure reliance on current COVID-19 regulatory guidance and updates relevant to their workplaces, and taking steps to implement any recommended control measures, wherever reasonably practicable. Ensure there is a clear risk-management process, which relies on current and expert COVID-19 information and risk-assessments as the basis for any decisions. Implement a process of governance or peer-review of these decisions, including by specialist subject matter experts (in this case, this may extend to pandemic medical professionals and others). Ensure there is a basis to assert that the employer, and its officers, have acted ‘reasonably’ in making decisions to continue certain operations and/or return employees to work, as well as regarding the control measures which will need to be taken. These decisions will need to be taken on the basis that an employer determines that pandemic-related risks can be eliminated or reduced, so far as reasonably practicable (and noting that some essential sites must continue operating, at least to some extent, and acknowledging that employees will likely need to return to work while the risk of COVID-19 transmission still exists in Australia). Review decision making with reference to comparable Australian industry peers, the state of knowledge and published guidelines regarding these pandemic-related risks or hazards, and through robust risk-management practices (even if an instance of COVID-19-related illness were to occur). That is, the legal standard will not be seen as an ‘absolute’ standard to prevent infection from this illness. Meeting this element of reasonableness requires an employer to take a ‘risk averse’ position in the protection of the health and safety of its employees. It requires an employer to eliminate the risk, so far as is reasonably practicable. Review all business policies, procedures and reporting processes to ensure they address the risks of COVID-19, and update these documents, if necessary. Ensure that new information, policies, procedures and processes about COVID-19 are clearly communicated to employees, and that these processes are being followed. Ensure there is evidence that decisions have been clearly communicated to staff, and that an opportunity for feedback and consultation has occurred. Require that the position is monitored and continually reviewed in light of changed circumstances or developments. A specific process of monitoring compliance with these new arrangements should be built into the implementation arrangements (e.g. local monitoring by managers, etc.). Provide instruction and training to employees on things they need to do to help manage the risk of COVID-19 spreading in the workplace. Can employees refuse to come to work? The general position in Australia (at present), is that a person should be able to work from home unless they cannot do so. This is consistent with the guidance materials published by Safe Work Australia, which provides that if work can be completed at home, and the risks that arise from working remotely can be effectively managed, encouraging or directing workers to work from home may be the best way to minimise the risk of exposure to COVID-19. In the context of the return to work over the coming months, there is expected to be a high degree of flexibility with workers who are otherwise able to work from home. If that worker is currently working from home, and is reluctant to return to the office in the short-term (perhaps on the basis that they are concerned about their public transport travel into work, or some other associated reason), Australian employers are likely to continue to permit that in the short to medium-term. In any event, there is likely to be a need for most employers to throttle the number of people returning to workplaces, and so there is likely to be a desire on both sides to limit the number of employees physically presenting for work. This is likely to be a feature for the balance of 2020 at least. Strictly speaking, employees are obliged to follow lawful and reasonable directions. However, an employee is not required to do so if they have a legitimate belief that doing so would cause a serious or imminent risk to their health and safety (i.e. a worker reasonably considers that they have a particular vulnerability to COVID-19 and/or transmitting it to a vulnerable person). The question is of course particularly vexed in the context of a worker who is unable to ‘work from home’, but refuses to attend work on the grounds of their own belief that they are at special risk of COVID-19 implications. There have not yet been a significant number of instances of this occurring (and by and large, workers have presented to work across a range of industries and sectors). If an employer were to press a worker to attend work in these circumstances, as a practical matter it would bear the onus of demonstrating the reasonableness of the direction and the adequacy of measures taken to protect that worker. If that worker were to still unreasonably refuse to attend work in these circumstances, there may be consequences including and up to termination of employment. Are masks legally required to be worn? The Australian position has been that masks are not essential requirements, and indeed medical and government advice has been to the contrary. The government position has been that, most people will not benefit from wearing a surgical mask. Masks are beneficial for people who are sick, so that they do not transmit the virus (e.g. by coughing on others), and health care workers who have frequent and close contact with sick people. In practice, only small numbers of Australian employers request that their employees wear masks, however it is not mandatory. The only social exception to this is if a person is required to isolate, in which case a face mask is required to be used in the following circumstances:
Risk of claims – from employees or trade unions/employee representatives The recommendations for ensuring a safe workplace are designed to seek to avoid the risk of any successful challenges to the employer’s health and safety response to this crisis. The risk of claims cannot however be excluded. How can claims be brought? By whom? Claims for compensation can be brought by employees under the compulsory workers compensation insurance system in each Australian jurisdiction. Claims can be brought for both physical and psychological injury, where work is the predominant of contributing factor. This operates on a strict-liability basis to ensure all injured workers are compensated without having to prove employer fault; this legislation is often referred to as ‘socially beneficial’ legislation. Workers who successfully bring these claims can be entitled to claim weekly benefits while they are absent from work. Workers are generally not entitled to bring civil claims directly against their employer, unless it can be shown that they have a serious and permanent injury. In the context of the pandemic, this may be less likely, although there may be risks of longer-term psychological injury in some circumstances. Potential sanctions A failure to manage health and safety responsibilities can result in regulatory investigation, and improvement or other statutory Notices can be issued by State agencies. At the more serious end of the enforcement spectrum, there is a risk of prosecution for failing to manage worker safety. There have been examples of COVID-related outbreaks being investigated by these agencies, but no current suggestion of enforcement activity. Data protection restrictions on collecting and retaining employee health data and best practice See also the Australia overview for protecting personal data and compliance available here.
when leaving home for any reason and will be present in public areas; when visiting a medical facility; and when symptoms (such as such as fever, cough, sore or scratchy throat or shortness of breath) are present, and other people are present in the same room.
The role of employee representatives in the health and safety planning Prior to opening workplaces following a COVID-19 related shutdown, employers are required to consult with any health and safety representatives (HSRs) appointed under applicable WHS legislation (including in respect of the risks of transmission and the control measures to address these risks), and must comply with any agreed WHS consultation procedures. Practically, we would suggest that all employers notify employees about proposed office re-openings, with sufficient time to gauge overall attitudes to the return to work and to allow issues to be addressed. Psychological support measures for employees Employers also have an obligation to take measures to protect the mental health of their employees as well as their physical health. This period may have created particular challenges for employees for a number of reasons, leading to an increased need for support measures to be implemented to also protect mental health, including for example in the following circumstances:
Specific health and safety requirements in the context of COVID-19 and practical recommendations and considerations for organising the workplace Government guidance on the up to date health and safety requirements can be accessed here. Government guidance on the up to date health and safety requirements can be accessed here. Singapore has implemented an elevated set of safe distancing measures from 7 April 2020 to 1 June 2020 (the "Circuit Breaker" period) to prevent the transmission of COVID-19. On 9 May 2020, the Ministry of Manpower in Singapore ("MOM") issued an advisory on the 'Requirements for Safe Management Measures at the workplace after Circuit Breaker period' ("Advisory"). The Advisory provides that employers are required to:
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Implement a system of safe management measures. This involves:
Reduce physical interaction and ensure safe distancing. This involves:
Dealing with employees who are identified as potentially suffering from COVID-19 symptoms whilst at work Employers must establish an evacuation plan for employees who are unwell or suspected to be suffering from COVID-19. The evacuation plan should include:
medical leave wages for days the employee was issued with medical leave due to the work injury or disease; medical expenses, including hospital bills, medication and other charges, due to the work injury; and lump sum compensation for permanent incapacity or death.
If the employee brings an action for breach of duty of care, the employer may be liable to pay damages to the employee for the losses suffered. Claims in relation to employer's non-compliance with health and safety measures There is no legal mechanism for employees to bring claims in relation to an employer's non-compliance with health and safety measures. However, employees may report an employer's non-compliance with health and safety measures that are required under the Advisory to the MOM. The MOM has broad discretionary powers including ordering an employer to stop operations at the workplace in the event of non-compliance. Data protection restrictions on collecting and retaining employee health data and best practice See also the Singapore overview for protecting personal data and compliance available here.
appointing at least one Safe Management Officer ("SMO"); and implementing a detailed monitoring plan detailing safe measures implemented and actions taken to remedy non-compliance.
the process involved when an employee informs the employer that he/she is unwell. For instance, the employee should be sent to a clinic/an ambulance should be called depending on the severity of the employee's condition; requiring employees to submit records of their medical certificates and diagnosis provided (only for COVID-19 related symptoms, including respiratory infections); and requiring employee to submit the results of a COVID-19 test if the employee has undergone testing.
Can employees refuse to come to work? An employee has no statutory right to refuse to come to work. However, during the Circuit Breaker period, an employee in a non-essential service should not be asked to attend work at the workplace. After the Circuit Breaker period, employers must ensure that employees who can perform their work from home continue to do so. Are masks legally required to be worn? Yes, the Advisory specifically provides that employers provide masks to employees and employees are required to put on masks at work. The role of employee representatives in the health and safety planning As discussed above, employers must appoint at least one SMO. The SMO is responsible for coordinating the implementation of safe management measures and conducting inspections to ensure compliance with health and safety requirements. The SMO is also in charge of remedying any non-compliance in relation to the implementation of safe management measures stipulated in the Advisory. Records of inspections and any remedial actions taken in the event of non-compliance must be documented as the Government may appoint inspectors to conduct audits on whether the safe management measures have been implemented and complied with. Risk of claims – in relation to workplace injuries/diseases How can claims be brought? By whom? An employee who suffers from injuries or contracts a disease at work or as a result of work may bring a claim under the Work Injury Compensation Act ("WICA"). The WICA states that "a disease ... which is directly attributable to an exposure, arising out of and in the course of his employment, to a chemical or biological agent and the incapacity or death of the employee results from that disease, compensation shall be payable as if the disease were a personal injury by accident arising out of and in the course of that employment and all the other provisions of this Act shall apply accordingly, subject to this section". The employee must notify the employer as soon as practicable after the occurrence of the disease. However, in the case of death, no notice is required. The employee is barred from brining a claim after one year from the accident which causes the injury or within one year from the death. Apart from WICA, an employee may also bring an action against the employer for breach of duty of care to provide a safe workplace for its employees. Potential sanctions Depending on what the employee claims for, an employer may be required to make compensation for the following under the WICA:
ensuring that employees who can perform their work from home continue to do so – only employees who are unable to perform their work from home should be required in the office premises; conducting all internal and external meetings between employees and any third parties virtually where possible; not organising any activities with close and prolonged contact (i.e. seminars, conferences, gathering, events). staggering working and break hours for employees who are required to attend work at the workplace; minimising need for physical touchpoints; and ensuring clear social distancing of at least 1 metre between employees' workstations.
Control access at the workplace. This involves:
limiting access to only essential employees and authorised visitors; implementing the SafeEntry visitor management system to record the entry of all personnel (including employees and visitors) entering the workplace; and refusing entry to all employees and visitors who are unwell.
Enforcing the use of personal protective equipment. This involves:
providing sufficient masks for all employees; and ensuring that all employees and visitors wear a mask at all times in the workplace
Implementing health checks (temperature screening) and requiring employees and visitors to confirm the following:
travel history; that they have not received a quarantine or isolation order, stay-home notice, or been issued medical certificates for respiratory symptoms; and that they are not a close contact of confirmed cases.
In the event of a confirmed case, a follow up plan must also be put in place. The follow up plan should include:
details on vacating the section(s) of the workplace premises where the confirmed case worked; carrying out a thorough cleaning of the workplace including equipment handled by the infected employee; working with the Ministry of Health to identify close contacts of the confirmed cases (other employees and visitors to the workplace as the case may be).
Other practical recommendations To help prevent the spread of COVID-19 , the following practical steps are recommended:
if possible, provide gloves and masks to employees who have to travel to work using public transport; discourage car-sharing by more than 2 employees (if car sharing is used, the passenger should sit in the back seat diagonally opposite the driver to comply with social distancing); facilitate access to / exit from the premises without contact. For instance, use of automatically opening doors, deactivate turn-styles that require touch, block open the main entrance/exit door during working hours; remind employees to use the lift alone; consider deactivating coffee machines/any other machines used by employees; avoid the use of photocopiers and other machines which require touch; and train and inform the employees on the health and safety measures which are in place, including putting up signs to remind employees to observe the measures implemented and notices on cafeteria/kitchen/common spaces to remind employees to comply with social distancing rules.
Specific health and safety requirements in the context of COVID-19 and practical recommendations and considerations for organising the workplace Government guidance on the health and safety requirements can be accessed here. On 3 March 2020, the Ministry of Health has issued a guidance setting out the health and safety measures that employers are required to comply with if employees are required to attend work at their workplaces ("Vietnam Guidance"). The Vietnam Guidance provides that employers should adopt the following measures:
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step up cleaning of the workplace; increase airflow at work by increasing ventilation, opening doors or windows, using fans and limiting the use of air conditioners; ensure that there is sufficient clean water and cleaning agents in the workplace; provide employees with personal protective equipment including masks and hand sanitisers; perform temperature screening and provide disinfectants at physical touchpoints; arranging an isolation room at the workplace if needed; stagger lunch hours and rest breaks to limit crowds; and arrange training for employees to keep them updated on the health and safety measures implemented to prevent the transmission of COVID-19.
Dealing with employees who are identified as potentially suffering from COVID-19 symptoms whilst at work The Vietnam Guidance provides that where an employee has been identified as potentially suffering from COVID-19 symptoms whilst at work, an employer must:
Other practical recommendations See section for Singapore. Can employees refuse to come to work? An employee has no statutory right to refuse to come to work. However, if an employee raises concerns about attending work at the workplace for fear of contracting COVID-19, an employer is encouraged to allow the employee to work from home where the work may be performed from home. Are masks legally required to be worn? Yes, the Vietnam Guidance specifically provides that employees are required to put on masks at work. The role of employee representatives in the health and safety planning There is no legal requirement to appoint an employee representative for the purposes of implementing health and safety measures in the workplace. However, it is recommended to appoint at least one employee representative to be in charge of the implementation of health and safety measures so as to ensure that successful implementation of such measures. Risk of claims – in relation to workplace injuries/diseases How can claims be brought? By whom? An employee who suffers from an occupational accident or disease may seek compensation from the employer under the Law on Occupational Safety and Hygiene ("LOSH"). An "Occupational accident" is defined as an accident causing injury to any parts or functions of the body or causing death to workers, which happens at work and in relation to the performance of work. An "Occupational disease" is defined as an illness caused to workers by their hazardous working conditions. An employee must notify the employer of the occupational accident or disease but the LOSH does not prescribe a timeline this purpose. Potential sanctions Depending on what the employee claims for, an employer may be required to make compensation for the following under the LOSH:
medical leave wages for days the employee was issued with medical leave due to the injury or disease; and medical expenses, including hospital bills, medication and other charges due to the injury or disease
immediately vacate the employee from the workplace and move the employee to an isolated area; require the employee to wear a face mask; determine whether there is a risk that the employee has been exposed to the virus in the course of the last 14 days; if the employee has fever and any indication of potential exposure to COVID-19 (whether due to travel history or exposure to a confirmed/suspected case), an employer must report to the local authority and send the employee to a clinic or hospital for testing. If the employee does not have any indication of potential exposure to COVID-19 the employee is required to self-isolate at home; and disinfect the workplace.
Additionally, the employer is also required to pay the employee compensation of between 18 days' wages and 12 months' wages depending on the impact of the disease on the employee's ability to work (this should be determined by medical assessment)/ Claims in relation to employer's non-compliance with health and safety measures There is no legal mechanism for employees to bring claims in relation to an employer's non-compliance with health and safety measures. Data protection restrictions on collecting and retaining employee health data and best practice See also the Vietnam overview for protecting personal data and compliance available here.
Specific health and safety requirements in the context of COVID-19 and practical recommendations and considerations for organising the workplace The Department of Labour Protection and Welfare has issued a guidance setting out the health and safety measures that employers are required to implement in the workplace ("Thailand Guidance"). The measures employers are required to implement include:
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ensuring that the workplace and physical touchpoints are frequently cleaned; providing hand sanitizers in the common areas of the office; educating vulnerable employees (i.e. pregnant employees, older employees), on hygiene measures requiring employees to wear face masks at work educating employees on COVID-19 precautionary methods and symptoms taking employees' temperature of employees before they enter the office
Dealing with employees who are identified as potentially suffering from COVID-19 symptoms whilst at work Employers must immediately notify the authorities if any employee is infected with or if there is a reasonable ground to suspect that an employee is infected with COVID-19. Failure to do so will render the employer to be liable for a fine not exceeding THB20,000. In practice, employers are encouraged to send an employee who is unwell to a clinic or hospital to seek medical consultation and treatment promptly; In the event where an employee is diagnosed with COVID-19, employers are encouraged to:
Other practical recommendations See section for Singapore. Can employees refuse to come to work? An employee has no statutory right to refuse to come to work. However, if an employee raises concerns about attending work at the workplace for fear of contracting COVID-19, an employer is encouraged to allow the employee to work from home where the work may be performed from home. Are masks legally required to be worn? Yes, the Thailand Guidance specifically provides that employees are required to put on masks at work. The role of employee representatives in the health and safety planning There is no legal requirement to appoint an employee representative for the purposes of implementing health and safety measures in the workplace. However, it is recommended to appoint at least one employee representative to be in charge of the implementation of health and safety measures so as to ensure that successful implementation of such measures. Risk of claims – in relation to workplace injuries/diseases How can claims be brought? By whom? An employee who suffers from injuries or sickness at work or as a result of work may bring a claim under the Thailand Workmen's Compensation Act ("Workmen's Compensation Act"). The Act defines "injury" to mean physical or mental injury or death suffered by an employee as a result of the employment or in the course of protecting the employer's interest or according to the employer's commands. "Sickness" is defined as illness suffered as a result of work caused by diseases incidental to the nature or condition of work. The employee must submit claims to the Provincial Social Security Office where the employee works or to the employer using the form prescribed by the Secretary General to the Social Security Office within 180 days from the date the injury or sickness is suffered. Potential sanctions Depending on what the employee claims for, an employer may be required to make compensation for the following under the Workmen's Compensation Act:
medical leave wages for days the employee was issued with medical leave due to the injury or disease' and medical expenses, including hospital bills, medication and other charges, due to the injury or disease.
vacate the section of the workplace where the employee worked; carry out a thorough cleaning of the workplace including equipment handled by the employee; work with the health authorities to identify close contacts of the employee (other employees and visitors to the workplace as the case may be).
The employer is also required to pay the employee 60% of the employee's monthly wages and the duration for such payments depends on the impact of the disease on the employee's ability to work. Claims in relation to employer's non-compliance with health and safety measures There is no legal mechanism for employees to bring claims in relation to an employer's non-compliance with health and safety measures. However, employees may report an employer's non-compliance with the requirement to notify authorities immediately in the event where an employee is found to be diagnosed with COVID-19. Failure to notify the authorities immediately will render the employer to be liable for a fine not exceeding THB20,000. Data protection restrictions on collecting and retaining employee health data and best practice See also the Thailand overview for protecting personal data and compliance available here.
Specific health and safety requirements in the context of COVID-19 and practical recommendations and considerations for organising the workplace The Centre for Health Protection has issued the Health Advice on Prevention of Coronavirus disease (COVID-19) in Workplace (Interim) which recommends employers to adopt measures including the following (“Workplace Advice”) (see here):
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ensure that employees take their temperature regularly. Those with a fever or respiratory symptoms should wear a surgical mask, refrain from work, avoid going to crowded places and seek medical advice promptly; ensure that employees who are required to work face to face with public or in crowded area wear a surgical mask; consider taking visitors’ temperature before allowing entry; maintain good ventilation; and regularly clean and disinfect frequently touched surfaces such as furniture, commonly shared items and floor.
To comply with their general health and safety obligations, in addition to the above, Hong Kong employers must ensure that they provide adequate safety equipment, health and safety training and issue clear safety directions to manage specific risks. As the test of liability under Hong Kong safety laws centres around the requirement of reasonable practicability, what may be considered sufficient in response to an emergency situation, may not be adequate in managing known risks on an ongoing basis. For example, more substantial safety measures to ensure an employee’s home is a safe workplace would be expected where an employee works from home on planned long term basis than where they are working from home as a temporary measure in response to an unforeseen event. Dealing with employees who are identified as potentially suffering from COVID-19 symptoms whilst at work There is no mandatory requirements in dealing with employees who are suspected as suffering from COVID-19 symptoms while at work. However, such employees may generally be directed not to attend the workplace until they see a doctor and require the employees to update the employer of the results of any COVID-19 testing. Records of such cases should be kept. Employers should also carry out cleaning of the employee’s workstation and equipment he handled. Employers should also consider whether they will require employees to report suspected cases. For certain employers, there may be a requirement to notify their regulating body (such as the Securities and Futures Commission) where an employee infection is confirmed and this may have an impact on operations
Other practical recommendations As businesses plan for and adopt work from home arrangements as a key pillar of business continuity planning including as they move to split team arrangements, they will need to consider issues such as whether employment contracts, policies and procedures need to be amended, in particular as they relate to health and safety or IT, confidential information and data protection. While the specific circumstances will need to be considered, early consideration and planning of how employer’s will manage disciplinary matters will allow the organisation to respond quickly in a considered and consistent manner which minimises the risk of employee claims. All measures must also be considered in the context of Hong Kong’s anti-discrimination Ordinances, in particular, the Disability Discrimination Ordinance which includes broad protections for individuals with a 'disability' (which would include anyone who has contracted COVID-19). Employers must balance their obligations under health and safety laws with the protections against discriminating individuals from particular groups. Can employees refuse to come to work? An employee has no statutory right to refuse to come to work. However, an employer should consider providing alternative work arrangements if the employee expresses genuine concerns about coming to work. Additionally, the Labour Department has issued an advisory on ‘Obligations and rights of employers and employees under the Employment Ordinance (EO) relating to the Coronavirus Disease 2019 (COVID-19)’ (“Advisory”). The Advisory sets out, inter alia, that an employer should work out a mutually agreeable arrangement with a pregnant employee who is concerned about possible infection at the workplace. The employer may, for instance, consider redeploying the pregnant employee to other roles. Are masks legally required to be worn? There is no legal requirement for masks to be worn save for in catering, sports and recreational facilities where masks must be worn within the premises except for persons consuming food or drink, or during exercise. Employers should provide equipment such as masks and hand sanitiser and require their use in the workplace. The role of employee representatives in the health and safety planning There is no legal requirement to appoint an employee representative in the health and safety planning. However, doing so is recommended in order to ensure that information is disseminated promptly and uniformly throughout the organisation. Risk of claims – in relation to workplace injuries/diseases How can claims be brought? By whom? While COVID-19 is not a prescribed occupational disease under the Employees Compensation Ordinance (ECO), an employee may still be able claim under the ECO where they can demonstrate they contracted COVID-19 and it amounts to a personal injury by accident arising out of and in the course of employment (although this is more difficult). An employee may also bring a claim alleging their employer has breached a statutory or common law duty. Employers may also be prosecuted by the Labour Department for breach of statutory safety duties. Where information obtained in respect of an individual is used in breach of the Data Protection Principles (DPPs) under Hong Kong’s data protection laws, the employee may make a complaint to the Privacy Commissioner. Employees may also be able to bring a claim based on breach of general labour protections related to non-payment of wages or unreasonable and unlawful dismissal. Where information obtained in respect of an individual is used in breach of anti-discrimination laws, an employee may make a complaint to the Equal Opportunities Commission (who will investigate and seek to mediate the matter) or commence proceedings against the employer in the District Court. Potential sanctions Awards under the ECO are made in accordance with a prescribed formula whereas damages awarded in relation to breach a statutory or common law duty are fact specific and uncapped. An employer who fails to ensure the safety and health of its employees may also be liable on conviction to a fine of up to HK$200,000 and, where this is found to have been done intentionally, knowingly or recklessly, imprisonment for up to six months (which may be imposed on directors and officers). A breach of a DPP will not in itself be an offence however, failure to comply with an enforcement notice issued by the Privacy Commissioner (following such a breach) is an offence with fines up to HK$100,000 and up to two years’ imprisonment. Data users may also be required to compensate any data subject that suffers loss as a result of the data user's breach of the data laws. For breaches of labour protections, remedies range from reinstatement to fines of up to HK$350,000 and imprisonment for up to three years. Where an employee is successful in a discrimination claim in the District Court, the court may order declaratory relief, reinstatement or promotion or damages (including punitive or exemplary damages).
Data protection restrictions on collecting and retaining employee health data and best practice See also the Hong Kong overview for protecting personal data and compliance available here.
The Occupational Safety and Health Council has also issued extensive guidance on COVID-19 infection control in the workplace including the following steps employers should take:
set up a core response team; implement ongoing flexible work arrangements such as remote working, staggered shifts and split teams; ensure physical distancing in the workplace including through ensuring seats are at least 1.5 metres apart, employees wear masks, meetings are not held in person and workplace visitors are limited; adopt policies which encourage employees to advise their employer of any health information including their health condition and that of anyone they’ve had close contact with in addition to any recent travel to high risk areas; increase workplace health and hygiene measures including the measures set out in the Workplace Advice; reduce travel or postponing non-essential travel; and develop an emergency preparedness plan and business continuity measures.
Specific health and safety requirements in the context of COVID-19 and practical recommendations and considerations for organising the workplace At the federal level, the United States Department of Labor’s Occupational Safety and Health Administration (OSHA) is the agency responsible for ensuring safe and healthy working conditions. OSHA has issued a set of advisory recommendations on changes to workplaces because of COVID-19 that relies heavily on guidance from the Center for Disease Control (CDC). The suggested measures vary depending on the risk level associated with the workplace – OSHA has divided jobs into four different risk levels. Key recommendations and considerations for developing a return-to-the-workplace policy include:
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Social distancing policies. Consider flexible worksites (e.g., remote working) and flexible meeting and travel options; consider flexible working hours (e.g., staggered shifts); increase physical space between employees at the worksite (e.g., staying at least six feet apart, limited office and elevator access, closing lunch and break areas), and increasing space between employees and customers/clients. Actively encourage sick employees to stay home. Employees who have symptoms should notify their supervisor and stay home. Sick employees should not return to work until they are cleared by a healthcare provider and/or criteria to discontinue home isolation are met. Employees who have been in contact with someone diagnosed with COVID-19 should notify their supervisor and follow CDC-recommended precautions. Separate sick employees. Employees who appear to have symptoms upon arrival at work, test positive for COVID-19 or who become sick during the day should immediately be separated from other employees, customers, and visitors and sent home. Employers should inform fellow employees of their possible exposure to COVID-19 while still maintaining confidentiality of the employee who tested positive, to comply with the requirement to maintain confidentiality of employee health information. The practical reality is that employees may be able to identify out who tested positive, but the employer should not disclose the employee’s name and should attempt to keep the employee’s identity as confidential as possible. Implement basic infection prevention measures. Implement and encourage best hygiene practices including thorough handwashing; covering coughs and sneezes; discouraging shared use of phones, desks, offices, or other work tools. Maintain rigorous housekeeping practices such as cleaning and disinfecting surfaces, making hand sanitizer available in multiple locations, and consider (and possibly require) use of face masks, especially in shared locations. Engineering controls. Consider the use of high-efficiency air filters and increase ventilation rates. Consider the use of physical barriers such as clear plastic sneeze guards or drive-through windows. Training. Provide employees with up-to-date education and training on COVID-19 risk factors and protective behaviors and train workers who need to use protective clothing and equipment on how to put it on and/or use it appropriately.
Dealing with employees who are identified as potentially suffering from COVID-19 symptoms whilst at work OSHA, CDC, and EEOC guidance suggests that employees potentially suffering COVID-19 symptoms while at work should be immediately isolated and separated from other employees and customers, sent home, and be required to follow CDC-recommended steps. The employee should not be allowed to return to the workplace until a healthcare provider expressly releases the employee to return, or in the absence of such express direction, the employee meets all three requirements to discontinue home isolation. These three requirements are:
Other practical recommendations In addition to the detailed practical recommendations from OSHA and the CDC available above, other practical recommendations include:
Be prepared to close the premises quickly if needed based on applicable guidelines and the possibility of a second wave of the virus. Evaluate workplace layouts and consider making certain stairways or hallways one way or entirely closing off certain areas. Use virtual means for office celebrations or events rather than physical gatherings. Review all existing workplace policies for temporary or permanent modification. Evaluate additional supplies that could help minimize employee time in common areas. Review reimbursement policies to address items related to employee safety.
At least 72 hours have passed since the person’s fever resolved without the use of fever-reducing medication; there has been improvement in respiratory systems (e.g., cough, shortness of breath); and at least 10 days have passed since the symptoms first appeared or two negative test results in a row, at least 24 hours apart.
No other fines, penalties, or remedies apply. Data protection restrictions on collecting and retaining employee health data and best practice See also the USA overview for protecting personal data and compliance available here.
The guidance recognizes that a one-size-fits-all approach is not appropriate for all worksites, and OSHA’s enforcement guidance has clarified that employers should be prepared to show that it considered these recommendations when implementing its return-to-the-workplace plan consistent with its risk level and that it made a "good faith effort" to create a safe and healthy working environment. Testing/temperature checks Employers considering testing/temperature checks as part of their return-to-the-workplace plan must consider the Americans with Disabilities Act (ADA), which requires that mandatory medical tests of employees be "job related and consistent with business necessity" and that any medical information be kept as confidential as possible. The U.S. Equal Employment Opportunity Commission (EEOC) – the agency that enforces the ADA – has provided specific guidance on ADA compliance for testing, employer inquiries, and other prevention measures related to the virus. The EEOC Guidance is available here, and the key components of this guidance are set forth below in the Data Protection Section. State and local law requirements Several states have issued directives and/or specific protocols on an industry basis that employers must also consider when preparing a return-to-the-workplace plan. For example, employers in Kentucky, Texas, and Vermont are specifically required to establish a screening process for employees before returning to work. These directives and protocols are constantly evolving and must be consulted at every stage of the return-to-the-workplace planning process.
Employers should err on the side of caution by immediately sending home employees who are suffering from COVID-19 symptoms and establish a policy to address employees with symptoms or potential exposure. If the case is confirmed as COVID-19, employers should identify employees who have worked in close proximity with the employee during the 48-hour period before the onset of symptoms and also send these employees home to follow CDC-recommended steps for individuals exposed to COVID-19. Communications to other employees should maintain the confidentiality of the individual infected with COVID-19 to the greatest extent possible.
Can employees refuse to come to work? Employees who fear COVID-19 infection cannot lawfully refuse to come to work unless all four of the below requirements are met. These requirements are established by the OSHA and are as follows:
the employee asked the employer to eliminate a hazard in the workplace but the employer refused to do so; the employee has a "good faith belief" that an imminent danger exists; a reasonable person would agree that there is a real danger of death or serious injury; and there is no time to get the hazard corrected through appropriate channels (i.e., OSHA inspections).
If an employer demonstrates good faith efforts to comply with the OSHA and CDC recommendations set forth above and does not compel employees to work in conditions that violate federal, state, or local standards, employees do not have a valid basis to refuse to come to the workplace. Employees at higher risk for COVID-19 The analysis is somewhat different for employees who are at a higher risk of COVID-19 due to a pre-existing medical condition – but even for these employees, they will not have a right to entirely refuse to work. An employer is required to engage in an interactive process with these employees to determine whether the employer can provide a reasonable accommodation that will allow the employee to perform the job at the workplace. The CDC recognizes the following conditions as placing individuals at a higher risk for COVID-19:
chronic lung disease or moderate to severe asthma serious heart conditions compromised immune systems
Many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune-weakening medications
severe obesity (body mass index [BMI] of 40 or higher) diabetes chronic kidney disease undergoing dialysis liver disease
If an employee has one of these conditions and specifically requests an adjustment, the employer must explore different options on how it may be able to accommodate the employee. Examples of adjustments include enhanced protective measures such as barriers, elimination or substitution of marginal functions of the job, temporary modification of work schedules, or moving the individual’s work location away from other employees. EEOC guidance states that employers and employees should be "creative and flexible" in response to the pandemic. However, if reporting to the workplace is deemed an essential function of the employee’s position and the employee refuses to do so, the law is unlikely to protect that employee – even if he/she has a condition that places the employee at higher risk for COVID-19. Are masks legally required to be worn? Under federal law, there is no legal requirement for employees to wear masks. While the CDC and OSHA recommend that individuals wear cloth face masks in public when social distancing is difficult to maintain – these are currently not legal requirements. Some individual states and local municipalities, however, legally require face masks for certain employees and customers of businesses that are currently operating. These requirements are constantly evolving, but varying degrees of state-wide requirements apply in Arizona, Arkansas, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Indiana, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, Puerto Rico, Rhode Island, Utah, Vermont, Washington, Washington DC, West Virginia, and Wyoming. The role of employee representatives in the health and safety planning Under the National Labor Relations Act (NLRA), employers have a duty to bargain with unions representing employees regarding wages, hours, and "other terms and conditions of employment." This bargaining requirement applies only to unionized workforces. An employer’s obligation to bargain over health and safety measures will be determined by:
the terms of the collective bargaining agreement between the employer and the union (often, collective bargaining agreements will have provisions that address an employer’s right to make certain unilateral changes), and whether the safety measure is specifically required by law; an employer generally has no duty to bargain over changes that are mandated by law and which the employer has no discretion in implementing.
Absent language in a collective bargaining agreement covering the employer’s right to make unilateral changes, implementing health and safety measures – including but not limited to adjusting or staggering work schedules; mandating that employees work from home or other locations; altering job duties; modifying policies relating to leave, attendance, travel, uniforms, etc.; or imposing mandatory COVID-19 testing – are likely to impose a duty to bargain with the union. This duty requires that an employer provide notice of a proposed change and the opportunity for the union to request bargaining over this change. An employer has no obligation to agree to the union’s position – the obligation is only to bargain in good faith. On a practical level, changes that are intended to better protect employees and that are consistent with recommendations from governmental authorities are unlikely to be met with strong opposition, but changes that may put employees in danger or result in reduced pay/benefits are likely to result in strong pushback. Psychological support measures for employees - USA As employees struggle with the dramatic changes brought on by the pandemic, employers may consider additional measures to assist employees in handling the psychological and emotional stressors stemming from these changes. While neither OSHA nor the CDC has specifically addressed dealing with the psychological stressors of COVID-19, some practical considerations include:
Regular individual contact with employees – team meetings, individual catch-up calls etc. and clear communication to all employees on the company’s approach and strategy concerning the crisis. Encouraging employees to take some vacation, particularly when work flow is decreased for many employers. Setting reasonable expectations as to the work required and ensuring these are clearly understood by the employee, his/her colleagues and manager. Facilitating a good IT infrastructure to the extent possible. Providing a resource for employees to seek external and confidential support and advice.
For employees with pre-existing mental conditions such as anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder, these conditions may result in an employee being considered to have a disability eligible for a reasonable accommodation. Accordingly, if an employee requests an accommodation citing one of these pre-existing condition as the reason, employers should engage in an interactive process by:
asking questions and requesting medical information to determine whether the condition is a disability; discussing how a requested accommodation could help the employee’s condition, and exploring potential alternatives.
Risk of claims – in relation to workplace injuries/diseases Clearly the recommendations for ensuring a safe place of work are designed to seek to avoid the risk of any successful challenges to the employer’s health and safety response to this crisis. The risk of claims cannot, however be excluded. How can claims be brought? By whom? Potential sanctions? OSHA Hazardous Working Environment. Employees who allege they are being subjected to a hazardous working environment can file an administrative complaint with OSHA. OSHA will investigate the complaint, and violations can result in an order to remedy the violation, as well as a fine of up to $13,494 per violation for serious breaches. This amount can increase significantly if the employer fails to abate the allege violation and/or becomes a repeat offender. Refusal to work. Employees who refuse to work based on an allegedly unsafe condition, and who are allegedly retaliated against in response, can file an OSHA retaliation clam that can result in reinstatement, lost wages and benefits, emotional distress, and punitive damages. For the claim to be successful, the employee must establish:
he/she asked the employer to eliminate the hazard but the employer refused to do so; the employee had a "good faith belief" an imminent danger existed; a reasonable person would agree there was a real danger of death or serious injury; and there was no time to get the hazard corrected through appropriate channels (i.e., OSHA inspections).
Employees are limited to filing these complaints with OSHA – employees cannot bring private causes of action in court alleging OSHA violations. Wrongful death and personal injury lawsuits The claims with the potential to result in multi-million dollar damages are wrongful death and personal injury lawsuits alleging that an employee’s exposure to COVID-19 at the workplace resulted in death or other serious injury. To date, a number of wrongful death claims – including by the estate of a deceased Walmart employee – have been filed alleging that the employer negligently exposed employees to the risk of COVID-19 and this resulted in death. The general rule in most states is that injuries or illnesses that are caused by the work environment are exclusively covered by workers’ compensation insurance and that workers’ compensation is the sole remedy for such illnesses. Workers’ compensation recovery is capped at a certain amount and because injuries are covered by insurance, the financial impact to employers is not significant. These newly filed wrongful death claims contend that workers’ compensation should not be the exclusive remedy for COVID-19 deaths. The success of this argument is likely to vary state-by-state and will also depend on the specific facts related to each case – for example, in California an illness is not an occupational injury under the workers’ compensation law just because it was contracted at work and, therefore, this argument that workers’ compensation should not apply may have a better chance at success in California. Wrongful death suits – if successful -- can result in significant awards and even bankruptcies for employers and therefore present the most significant risk for employers. ADA and state/local discrimination laws Employees can file administrative complaints for disability discrimination with the EEOC and/or the state or local agency charged with enforcing discrimination claims. The EEOC conducts an investigation, which can result in further action by the EEOC, but the most typical result is that the EEOC issues a "Right to Sue" letter that allows employees to bring these claims directly in court. In certain states, employees can bypass the EEOC and file claims directly in court. An example of such a discrimination claim could be a claim by an employee with a pre-existing mental condition who is refused an accommodation and terminated for refusing to report to the workplace. Remedies for a successful claim can include reinstatement, lost pay and benefits, and compensatory and punitive damages. NLRA The National Labor Relations Act (NLRA) governs collective bargaining disputes – the remedies available under the NLRA are fairly limited. For example, if a union contends that an employer unlawfully implemented a change without bargaining, the union must file a charge with the National Labor Relations Board, and the ultimate remedies are:
rescission of the change; an order to bargain; and an order to make any employees whole who may have lost pay or benefits as a result of the change.
Specific health and safety requirements in the context of COVID-19 and practical recommendations and considerations for organising the workplace Under Federal Law No. 8 of 1980, as amended (the “UAE Labour Law”), all onshore employers have an obligation to provide workers with adequate protection means against hazards of occupational injuries and diseases that may occur during their work. In the context of COVID-19, employers will be required to ensure that precautionary measures are taken to control the spread of COVID-19 so that employees are protected. The Ministry of Human Resources and Emiratisation (“MOHRE”) published Ministerial Resolution No. 279 of 2020 on Employment Stability in the Private Sector During the Period of Application of Precautionary Measures to Curb the Spread of Novel Coronavirus (“Resolution 279”) on 26 March 2020. Resolution 279 encourages employers to consider alternative means of reducing staffing costs rather than effecting terminations and makes clear that certain measures should be with an employee's express written agreement. Pursuant to the resolution, employers have the right to impose remote working and paid leave, and to mutually agree to unpaid leave, temporary and permanent reduction in salary. Ministerial Resolution No. 281 of 2020 Regulating Remote Work in Private Establishments During the Period of Application of Precautionary Measures to Curb the Spread of Novel Coronavirus (“Resolution 281”), published on 29 March 2020, requires businesses to ensure that no more that 30% of their employees work from the firm’s registered office. Employers must also take precautionary measures including: (i) increased sanitation measures in the workplace by way of continuous disinfection; (ii) screening employees in the workplace / any employer-provided staff accommodation for COVID-19 symptoms twice daily – suspected case must be sent to hospital; (iii) ceasing any cultural, sports or social activities at staff accommodation; (iv) limiting the number of passengers in employer-provided transportation to 25% of a vehicle’s capacity; and (v) maintaining social distancing of at least two metres in staff accommodation canteens. Resolution 281 (and its clarificatory guidance) provides a framework for working from home and obliges employers to comply with a number of requirements:
RETURN TO THE WORKPLACE: UAE
provide the technical equipment necessary to carry out remote working through the use of smart and electronic systems; determine mechanisms, standards of efficiency and productivity, and time frames for all tasks assigned to the worker; determine the mechanisms for the management of remote working, such as determining working hours, whether set at a specific time or a flexible during the day, week, or month; ensure the availability of a safe technological environment to carry out remote working, taking into account the controls related to maintaining the privacy and confidentiality of data and codifying the powers to access the systems; follow-up with remote workers electronically in order to ensure their commitment to working hours remotely and the completion of the tasks assigned to them; facilitate remote workers' communication with their colleagues in management and leadership, as required to perform tasks and access the necessary information and systems to perform the work, and video chat applications shall also be provided; ensure that all employees have a way of logging on to secure systems from home; provide a “working from home” written policy; where there is no established company home working policy in place, record the arrangement with relevant employees in writing; provide any necessary training required to work from home, such as training on communications; consider whether any employers' liability insurance cover would cover a personal injury sustained by an employee while working from home; and consider what measures need to be put in place to protect the confidential information of the business and personal data of employees and customers; and as all schools in the UAE are closed for the remaining of the academic year, being aware of parents having to take on the additional responsibility of looking after their children whilst working from home.
Articles 43 – 53 of the DIFC Employment Law, relating to employers’ general duties and their health & safety obligations, are stated not to apply to employees who are remote working during the Emergency Period. The ADGM’s Registration Authority (“RA”) issued Registration Authority Circular No. 14 of 2020 on 29 March 2020 (“Circular”). The RA requires businesses to ensure that no more that 30% of their employees work from the firm’s registered office. Any staff whose role does not require their physical presence in the office should work remotely. Again, there are exemptions: businesses that work in the following sectors are exempt: supermarkets, grocery stores, pharmacies, hospitality, food establishments (delivery services only), security, maintenance, cleaning, infrastructure management and construction. Dealing with employees who are identified as potentially suffering from COVID-19 symptoms whilst at work UAE Resolution 281 provides for screening of employees for symptoms of COVID-19 twice daily. Suspected cases must be referred to hospital. Direct supervisors at work are under a duty to order employees displaying COVID-19 symptoms to seek medical assistance and if they do not to report their condition to the authorities. Federal Law No.14 of 2014 (the “Communicable Diseases Law”) as amended has been further amended to include COVID-19, meaning that individuals are under a personal duty not to transmit the virus (even if asymptomatic), not to travel if they suspect they have it, to seek medical treatment, and not to deliberately transmit the virus, which could include going to the workplace unnecessarily. Penalties include 5 years imprisonment and a fine of between AED 50,000 to 100,000. MOHRE issued guidelines on May 8, 2020 calling on employers to treat employees infected by COVID-19 as pathological cases, under which they should be granted sick leave in accordance with the UAE Labour Law, i.e. up to 90 days per year (the first 15 days at full pay, the next 30 days at half pay, and the next 45 days without pay). In Dubai, the Dubai Health Authority’s COVID-19 Command and Control Center has issued a FAQ which provides that employees with the virus should be paid in full during any isolation period. DIFC An employee who takes sick leave during the Emergency Period either because they have contracted COVID-19 (as confirmed by a sick leave certificate or by a Competent Authority) or have been placed in mandatory quarantine by a Competent Authority in order to limit the spread of COVID-19, shall be entitled to 100% of their daily wage during the period of such sick leave. Any such sick leave will not count towards sick leave entitlement under the DIFC Employment Law. A Competent Authority includes the UAE Federal Ministry of Health and Prevention, the Government of Dubai Health Authority and / or any law enforcement or other federal local government department authority in the UAE that may impose quarantine restrictions on DIFC employees.
Other practical recommendations In Dubai, the Dubai Health Authority’s COVID-19 Command and Control Center has published a document aimed at employers in terms of risk assessment, minimising risk of COVID-19 and taking care of employees who may be suspected cases. The note can be found here. The DIFC Authority has requested that DIFC businesses comply with the notice. Can employees refuse to come to work? If an employee considers that travelling to the workplace means they will commit a breach of the UAE Government’s rules on the restriction of movement (there is currently a daily curfew between 10pm and 6am) [this will change on 20 May to 8pm and 6am] or other COVID-19 measures, they can refuse to go to work. Similarly, if an employee considers that the workplace is unsafe, they could refuse to attend. Employers are under a general duty to safeguard employees' health and safety and to ensure they are providing a safe working environment. An employee should not be subject to any unfair treatment as a result of taking that action. Are masks legally required to be worn? Individuals must wear masks at all times when in public and in the workplace with fines imposed for non-compliance. A fine of AED 5,000 for the employer and AED 500 for the employee can be imposed for workplace breaches. The role of employee representatives in the health and safety planning Not applicable. Risk of claims – in relation to workplace injuries/diseases How can claims be brought? By whom? In the event of a breach of health and safety laws applicable in the workplace, employees are likely to have a contractual or statutory claim against their employer. Whether or not an employee could claim compensation for contracting the virus at work will depend on the circumstances and whether the employee can conclusively establish the link between work and contracting the virus. The UAE Government may also impose criminal and administrative sanctions for breaches of the various COVID-19 measures in place. The UAE Government has been very proactive in imposing fines for such breaches against individuals and the local press has carried report of officials reminding employers to subject workers to medical screening or face a fine and possible legal action for delays. Potential sanctions Whilst neither Resolution 279 or 281, issued by MOHRE, provide for sanctions for non-compliance, Cabinet Resolution No. 17 of 2020 Concerning the Issuance of the List of Violations of Precautionary Measures, Instructions and Duties Imposed to Reduce the Spread of COVID-19 prohibits violation of any precautionary and preventative measures, instructions and duties issued by the Ministry of Health and Prevention, the Ministry of Interior and the National Emergencies, Crisis and Disaster Management Authority in relation to maintaining health and safety to prevent the risk of spreading COVID-19, and grants such authorities the power to impose administrative penalties of between AED 500 and AED 50,000 which may be doubled in the case of reoccurrence, and permits further sanctions in the event of a third breach including referral for prosecution. MOHRE have confirmed to us separately that financial penalties can be imposed for breaches of their Resolutions.
Data protection restrictions on collecting and retaining employee health data and best practice See also the UAE overview for protecting personal data and compliance available here.
Resolution 281 (and its clarificatory guidance) also imposes the following obligations on employees:
obtain Employer's approval for remote working; report to the workplace when requested to do so; perform tasks according to specified timeframes; be available to answer all calls, e-mails and any available means of communication to ensure continuous communication according to requirements of work; maintain confidentiality of information, documents and papers, and utilize the remote working hours to complete required tasks; provide supporting evidence required by the employer regarding their accomplishments and productivity; preserve remote working devices provided by the employer and return them whenever so required; and read and comply with the privacy policy for remote workers.
There are exemptions to Resolution 281: businesses that work in the following sectors are exempt: the financial sector, health, education, infrastructure, supply, telecommunications, energy, the food industry, hospitality, medical and cleaning. Resolution 281 applies only to private sector employees and does not extend to employers within certain economic freezones such as the DIFC and ADGM. Employers’ with establishments in the DIFC and ADGM have a general duty to ensure the health, safety and welfare of their employees at the workplace so far as is reasonably practicable. The Dubai International Financial Centre (“DIFC”) published Presidential Directive Number 4 of 2020 on 21 April 2020 (the “Directive”) to announce emergency measures (the “Emergency Measures”) currently being taken in the DIFC in response to COVID-19. The Emergency Measures will continue to be in effect for the duration of the Emergency Period (the period from the effective date of the Directive up to and including 31 July 2020, or such other date confirmed by the President of the DIFC, H.E. Sheikh Maktoum Bin Mohammed Bin Rashid Al Maktoum. The Directive reflects similar measures adopted by the UAE Government that affects employees outside the financial free zones. An employer may implement one or more of the following Emergency Measures during the Emergency Period without their employees’ consent:
impose reduced working hours; impose vacation leave; impose leave without pay; reduce remuneration on a temporary basis; restrict workplace access; and / or impose remote working conditions and requirements including but not limited to measuring employee engagement and / or productivity during remote working.
RESPECTING HUMAN RIGHTS
Businesses have a responsibility to respect human rights, deriving from international standards, domestic legislation and from their own human rights commitments.
This responsibility is all the more important in the context of the severe impact that the pandemic is having, from a human rights perspective, across corporate activities and value chains. These issues are not only relevant only to a company’s own employees; they also affect wider stakeholders, having the greatest impact on the most vulnerable.
Last updated 29 June 2020
Human rights risks are particularly acute in countries where labour laws and social systems offer limited protection, where there is extreme poverty or inequality, where governance or the rule of law is weak or where there are significant legal or practical barriers to an individual accessing justice in relation to the protection of their human rights. However, all businesses have a responsibility to respect human rights, deriving from international standards, domestic legislation and from their own human rights commitments (including, through codes of conduct, human rights policies and related documents). This responsibility is not limited to a company’s own activities; a company might also need to take steps to ensure the respect of human rights in its wider relationships (such as with suppliers, customers or business partners). A decision taken at the highest level of a company, that on its face might seem a purely commercial or legal decision (such as amending, suspending or terminating contracts, including through force majeure clauses, or signing new contracts with employees or business partners) can impact the human rights of individuals and groups all along its value chain. These impacts can be profoundly positive, or negative, depending on how centrally the company places human rights considerations in its key decision-making processes In order to assess and manage the scope of human rights risks, businesses should identify the individuals and groups, across both their activities and value chains, that are most exposed to adverse human rights impacts both as a result of the business’ operations and also, in particular, as a result of the pandemic. In particular, businesses should consider the most vulnerable groups in society, including women and girls, migrants, the elderly, people with underlying health conditions and/or disabilities, ethnic minorities, indigenous peoples, refugees, asylum seekers, those living in extreme poverty and homeless individuals. As the current context continues to change rapidly and businesses continue to adapt their working habits, processes and business needs, they should ensure that they continue to identify any new risks that arise and continue monitor existing risks in case particular developments exacerbate them. For more information see here. For an overview of current soft and hard law human rights standards see our Business and Human Rights hub here.
