COVID-19 Legal Alert- Employment
Introduction
It is no news that COVID-19 has rapidly spread across the world
with the World Health Organization reporting more than 130,885
deaths globally. In these unprecedented times, how you protect
yourself and your business from the legal implication of a virus
with no vaccine should be a priority.
The cost of Covid-19
The total cost of the Pandemic on the global economy is currently
estimated by the UN trade and development agency to be $1
trillion and this figure is likely to raise. The devastating effect of
the corona virus can be seen on the global aviation industry
where IATA predicts that about 25 million jobs could be at risk.
Alexandre de Juniac in his remarks at the IATA media briefing on
Covid19 on 14th April 2020 states that “If airlines lose one job
another 24 disappear somewhere in the value chain”.
In Uganda, the Pandemic has caused the government to order a
country wide lockdown and although no study has been done on
the economic impact of this action, many businesses are set to
shed off jobs as their incomes reduce. As businesses prepare for
the post Covid-19 era, CEOs and entrepreneurs must minimize
exposure to litigation by observing and taking deliberate actions
to comply with the law as they restructure their business and
operations.
Litigation in & after Covid-19
There is no doubt that Covid-19 related litigation will soon be
common place around the world. One of the first such case on
the African continent, is the south African case of exparte Van
Heerden decided on 27th March 2020 where the applicant
approached the High court of South Africa on an urgent basis for
an order that he be exempted from travelling restrictions to allow
him bury his grandfather in another part of the country. The
presiding judge dismissed the application stating that authorizing
the applicant to travel would be to break the lockdown
regulations which apply to everyone within the country and in
addition that no matter how careful and diligent the applicant
would conduct himself, he could expose others to unnecessary
risk. Many Covid-19 related cases could be filed both against
governments and private businesses in the near future.
Termination of employment contracts
The Ministry of Gender, Labour and Social Development on the
20th March 2020 issued guidelines that are enlightening on
employer/ employee relationships and how to keep work places
safe in the context of Covid-19.
The ministry encourages retention of employees who are on
monthly pay, since termination at this stage may become costly
in terms of payment of terminal benefits. However majority of
employers in the private sector in Ugandan are in the informal
and SME sectors which largely depend on daily incomes to
sustain their operations. These businesses may find it very
difficult to sustain operations without income for over a month.
Such companies will, be forced to cut costs in order to survive
and laying off employees maybe one of the cost cutting measures
to take. In the end, the decision on whether to retain employees
or not is a business decision that individual CEOs and business
owners will have to take.
Should a business decides to terminate their employee’s
contracts, then it must do so within the confines of the law. The
employment Act and individual employment contracts will
normally provide for how employment contracts are to be
terminated. Employers must adhere to these provisions in case of
termination. Special attention must be given to payment of
terminal benefits which may include payments in lieu of notice,
severance packages, accrued leave, gratuity, outstanding NSSF
contributions and repatriation costs where applicable. In case the
employer is laying off over 10 employees within a three months
period, then they must do so while complying with the section 81
of the Employment Act which requires such an employer to notify
the commissioner at the ministry of Labor in writing giving
reasons for the termination, the number and categories of
workers likely to be affected and the period over which the
termination is likely to be carried out. In case of unionized
workers, the employer should review the provisions of any
existing collective bargaining agreements before terminating
employment contracts. Employers may also choose not to renew
existing contracts that are coming to an end or cease non
essential operations.
Safety at workplaces
The ministry of labour further guided that employers should
provide training of workers on preventive measures for Covid-19,
provide protective equipment and treatment of affected workers.
Employers have a statutory obligation to ensure that their work
places are safe and to take every precaution necessary for the
protection of their employees at the work place and during the
execution of their duties. In the context of Covid-19, every
employer must ensure that employees have protective gear, can
travel safely to and from their places of employment and are
given training and guidelines on how to execute their
assignments safely.
There is a possibility that employees who contract Covid-19 in
the course of their employment will sue their employers if such
employers have not taken reasonable measures to maintain a
safe and healthy workplace. Of course reasonable measures will
vary depending the nature of exposure in different industries. It
is important to note that information about transmission of
Covid-19 is evolving day by day and employers must ardently
follow guidelines that are being issued by the ministry of health,
WHO, Center for Disease Control and the Infectious Diseases
institute of Makerere University among others. The websites of
ministry of health, CDC and the World Health Organization are
regularly updated and provide authoritative information on how
the virus is transmitted and work place safety guidelines .
Employers in industries such as banking, hospitality, media and
health sectors where employees are exposed to a higher risk of
contracting of Covid-19 should review their insurance covers to
ensure that their employers are covered under the different
policies or change to insurance companies that are willing to
cover their employees against Covid-19. Employers should also
seek clarity about the extent of their insurance covers where an
employee is working from home.
Where an employer wishes to retain employees at work during
the lockdown period, the employer should educate them about
the dangers posed to their health by their continued presence at
the workplace and how to prevent contraction of the virus. The
employer must not assume that employees already have this
information. In other words, the employer should obtain the
informed consent of their employees in continuation of work
especially for assignments with a high likelihood of contracting
the virus . Should an employee contract Covid-19 in the course of
employment, it should be the responsibility of the employer to
ensure that such an employee is treated. The employer also has
the obligation to immediately notify the ministry of health about
such occurrence.
Refusal to work during Covid-19
Where an employee or independent contractor refuses to work
because of fear of exposure to Covid-19, the employer should
immediately investigate this through an interview and find out
details of the employee’s fears. They should ascertain if the fears
are realistic or even justified. The employee should then be
notified, in writing, of measures that will be taken to mitigate
chances of contracting the virus, if they choose to return to work.
Such measures must be informed by the ministry of health, WHO
and CDC best practices and guidelines.
Employees Prone to contracting Covid-19
If an employee falls under the category that is prone to
contracting the virus, for example older adults, people who are
immunocompromised, and persons with severe underlying
medical conditions like diabetes, heart or lung disease , then the
employer must not force them to work in an environment that
can have them easily contract the virus neither should they
unlawfully terminate their contracts as this could expose the
employer to adverse litigation.
Some options for staff retention
In the event that the employers would wish to retain all company
employees while still in an uncertain financial situation, they
could explore a number of options like negotiated suspensions of
the contracts for a defined period, pay cuts and a taking of
statutory leave during the lockdown period.
In all, both employers and employees must recognize that Covid19
has created a situation where contracts may be frustrated and
therefore necessitating termination, however, such terminations
must be done lawfully. Where an employer doubts the legality of
their actions, they should consult a lawyer for guidance and
professional advice.
Our employment law practice team is available to assist you,
your company, business or organization in case you need
guidance on how to deal with employment matters in the context
of Covide- 19. Our contacts are below:
Email:info@onyangoadvocates.com
onyango@onyangoadvocates.com
Miriam Kaggwa Babirye- Managing Partner – +256-772606141
Annet Bada- Partner- +256777005005
Onyango Owor- Partner – +256787367458
