BY MONIQUE JEFFERSON & JUSTINE KATZ
With the number of coronavirus COVID-19 cases increasing daily, and in light of the World Health Organization now terming it a pandemic, employers should have a clear plan in place in relation to their employees. This plan should clearly communicate to employees the rules around business travel, personal travel, quarantine, absences related to the virus, and working from home. It is also recommended for employers to have a risk-assessment committee that monitors the progression of the virus and adapts the company rules and policies in line with the constant changes.
Travel Policy
When considering whether employees should embark on business-related travel, employers need to carefully weigh up the operational requirements of the business against the potential risk to the health of travelling employees and that of those employees’ colleagues on their return to work. It is recommended that business travel to high-risk areas be put on hold for the foreseeable future and that all international business travel should be avoided where reasonably possible and instead alternatives should be considered such as teleconference calls and webinars. The designation of a particular country or region as high-risk is constantly changing, creating a need for companies to reassess this on a daily basis. It is therefore recommended that all planned business travel is disclosed to management or a committee that then makes a decision on a case-by-case basis about whether or not the business travel should be permitted in the circumstances.
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Where an employee refuses to travel for work purposes the employer should assess the reasonableness of the refusal in light of current prevailing circumstances, in order to assess whether the employee is disobeying a reasonable instruction (which may warrant disciplinary action) or whether there are reasonable grounds for refusing to travel.
As regards personal travel, although employers cannot compel employees to cancel any planned trips, it is recommended that employees are requested to disclose their personal travel so that the employer can carefully manage the risks when the employee returns to work. It should be clearly communicated to the employees that the employer may require the travelling employee to undertake a period of self-isolation on their return if there is a reasonable apprehension that the person may have been exposed to the virus.
Quarantine
Regardless of whether an employee has travelled for business or personal purposes, an employer may impose a mandatory period of quarantine on employees after a visit to a foreign country if it is reasonable in the circumstances to do so. There may also be other circumstances that justify quarantine such as where employees have been exposed to someone with the virus or are presenting with symptoms. It is recommended that the rules around quarantine are clearly communicated to employees so that this can be consistently applied to avoid unfair discrimination claims.
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The issue of quarantine would need to be evaluated on a case-by-case basis but a broad framework should be enunciated, distinguishing between government-mandated quarantine, employer-mandated quarantine and self-imposed quarantine. It should also deal with whether the period of quarantine would be deducted from sick leave, annual leave or whether the employer would grant special leave. Where employees are quarantined and can continue to work from home then they should be paid in the normal course. However, if the nature of the job is such that the employee cannot work from home then the employer would have to carefully consider how to handle this absence.
There should also be rules in place regarding client meetings and attending business events and an obligation should be placed on employees to disclose to the employer when they have come into contact with clients or other individuals that have travelled to high-risk areas or may have been exposed to the virus so that the employer can take preventative steps to protect the workforce.
Other Virus-Related Absences
Coronavirus COVID-19 has the potential for far-reaching effects such as employees needing to stay home to look after children as a result of school closures or having to care for a family member who becomes sick with the virus. These instances need to be treated consistently across the company, and therefore it is advisable to draft a policy around these and other virus-related absences from work.
Employers could also consider flexible-working arrangements such as allowing employees to work remotely from home, flexible working hours, and staggered work times so that family members can share the childcare responsibilities.
Working From Home
Employers should clearly communicate the consequences for employees should they be required to work from home and it then comes to the attention of the employer through, for example, social media platforms that the employee is actually partaking in recreational activities as opposed to working. It should also be clear that the employer may revoke a working from home arrangement at any time if it is no longer feasible for the employer’s operations or if it has had a negative impact on the employees’ productivity, with due regard to the potential risk should the employee return to work.
Working from home poses an increased risk to breaches of confidentiality and data breaches as a result of employees printing sensitive documents at home, or taking documents containing private information out of the office. There should accordingly be clear rules around data privacy and confidentiality as well as rules regarding the safe disposal of documents that have been taken off the employer’s premises. Contingency plans should be in place in the event of an office-wide shutdown and the risk committee should also determine at what point it would consider an office shut down and the consequences thereof.