Justine Collins | Employment contracts and the coronavirus: Telework, layoffs and hazard pay
OP-ED CONTRIBUTION: CONTRACTS AND COVID
Since the first confirmed case of COVID-19 in Jamaica on March 10, the Government has enacted preventive measures to help reduce the spread of the coronavirus.
Over time these measures will be enhanced or reduced, depending on the circumstances faced by the country.
The Disaster Risk Management (Enforcement Measures) (No. 2) Order 2020 has established measures to ‘flatten the curve’ in an effort to contain the virus, such as the closure of Jamaica’s air and seaports to foreign nationals and the restriction on the operations of certain businesses, and limiting some to operate with only 10 persons at a time.
Some businesses, such as bars, nightclubs and other places of amusement, were ordered closed; and the opening hours of barber shops and hair salons confined within a time band of 10 a.m. to 5 p.m. Other businesses have implemented remote work or work from home policies. And some have had to restructure their operations either to accommodate the changes, or in consideration of the potential economic downturn.
Within these restrictions and changes in workplace policy, one of the considerations for employers is whether employer-instituted quarantines or temporary Government shutdowns that lead to reduced operations still entitle employees to salary or wages. Another is the circumstances under which they can temporarily lay off an employee.
The Employment (Flexible Work Arrangements) (Miscellaneous Provisions) Act already provides a statutory basis for some employment contracts to have flexible working arrangements, inclusive of telework or telecommuting.
Under a telework or work from home arrangement, employees’ salary must be paid.
If you assess the duties of employees and are satisfied the tasks can be performed at home, then they would be entitled to compensation for the services performed, even if it’s from their place of residence.
Further, in the case of persons over the age of 65 years, they are required to work from home, to the extent possible, save and except those employed in the sectors expressly exempted in the disaster risk order.
This qualifies as a type of mandatory quarantine measure by the Government. If the employee in this situation is working from home, they are entitled to compensation. However, if they are not able to do so, the employer is not required by law to pay the employee’s salary, but may consider doing so as a circumstance of ‘special leave’.
Some employees may opt to self-isolate given their pre-existing conditions or age; they may feel like they are at greater risk. Employers should engage in a discussion with employees to come to an agreement on the most suitable arrangement.
Some employees may elect to use their paid vacation leave, which if they so qualify, may be agreed with the employer. Otherwise, the employee may wish to apply for unpaid leave, which the employer may grant.
Many businesses are considering layoffs or ‘short-time working’ arrangements as a temporary cost-saving measure. Short-time working is the reduction of employee working hours, and consequently compensation. This would need to be agreed by the employees and thereafter revised as the circumstances of the pandemic change.
If a business operation shuts down temporarily or permanently, the employer may either temporarily layoff employees without pay, or make them redundant under the Employment (Termination and Redundancy Payments) Act, or ETRPA.
A ‘layoff’ describes a situation where the employer does not provide any work for its employees, even though they are available to perform their duties. Under the ETRPA, an employee can be laid off without pay for up to 120 days. It permits a layoff in this manner if the circumstances of the employment are changed; so that for some period the employee receives no pay pending a decision by the employer to reinstitute the previous or similar employment.
Given the coronavirus pandemic, the economic uncertainty which looms for some businesses may cause employers to consider a cost-cutting exercise, albeit for a temporary period. On the expiration of 120 days, the employee, if not recalled for work, may request in writing that they be made redundant.
If an employer intends to cease business given the pandemic, or finds that the need for work of a particular nature has ceased or diminished, then they may make the employee redundant, subject to the Labour Code, which requires consultation with the employees or their representatives to take all reasonable steps to avoid redundancies.
The Labour Code further requires that employers’ consultation should evolve a contingency plan to ensure that employees do not face undue hardship if made redundant. And, for employees covered under a collective bargaining agreement, typically unionised workers, the terms of the agreement must be factored.
Keep in mind that for employees who may be made redundant or laid off at this time, the Government has established SET–Supporting Employees with Transfer of cash. SET provides temporary cash transfers to dismissed or laid-off individuals earning less than $1.5 million per year, where it can be verified that they lost employment between March 10 and June 30.
For employers seeking clarity about hazard pay, there is no provision under Jamaican law which requires hazard pay to employees required to attend their place of work to perform the services under their employment. This, however does not preclude the employer, if they so desire, providing such compensation to their employees.
Hazard pay, if offered by an employer, is additional compensation for performing hazardous duties or work involving physical hardship. Internationally, there have been calls for hazard pay to be provided to those who are not able to telework and, accordingly, may come into contact with the dangerous virus.
The disaster risk order requires that except as required for attendance at work, gatherings in any public place should not exceed 10 persons at a time, and each person is to maintain a distance of at least three feet.
Certain businesses are exempt from the restrictions on gatherings, such as service providers for health, water, electricity and sanitation; tourist establishments; retail services, such as markets, supermarkets, pharmacies and ‘corner shops’, for the provision of food, medicine or other necessities of life; ministries, departments and agencies of Government, and municipal corporations; banking business; and public transportation.
Accordingly, there may be a legal basis for you to require that employees and customers maintain a ‘social distance’.
Some establishments have also required customers and employees to use hand sanitiser prior to entering the place of business. While establishments may ask persons to sanitise before entering, the Ministry of Health advises that customers are entitled to refuse to be sanitised by unapproved or unlabeled solutions.
Likewise, the business may refuse entry to employees and customers who do not follow their established safety and sanitisation protocols. However, guidance from the Ministry of Health has stated that customers and employees are to be advised of the chemicals or hand sanitisers used, and that persons cannot be denied entry on the basis of refusing to use unlabeled or unknown substances.
Further, they advised that establishments should also make facilities available where customers and employees can wash their hands with soap and water; and advised against the mixing of potentially harmful chemicals.
If a customer or employee complains of an injury or loss owing to the use of an unlabeled sanitiser – such as bodily injury from potentially harmful chemicals or ‘bleached’ clothing – businesses may face liability.
Tips for employers:
1. Create or improve on your risk management/business continuity plan to provide internal processes in the outbreak of pandemics to minimise your losses. Consider implementing a telework policies for staff who are working from home;
2. Create a social distancing policy in order to provide a safe place of work for your employees, inclusive of increased measures at sanitation and the provision of sanitation material for your employees;
3. Document and record all the steps which you have employed to mitigate against the effects of the pandemic in your business;
4. Ensure that you have effective messaging and communication to your employees regarding the changes in policies from time to time; and
5. Keep abreast of the updates from the Ministry of Health and Wellness and other authorities.
The final part of this article will appear next week.
Justine A. Collins is an attorney at the law firm Hart Muirhead Fatta.