Justine Collins | Employment contracts and the coronavirus, Part 2
OP-ED CONTRIBUTION: COVID & CONTRACTS
The World Health Organization has advised that only persons who are sick or who may come in contact with a sick person, like an employee in healthcare, should wear face masks and gloves, given the increasing global shortage.
However, if employees wish to wear face masks and gloves, and are using it in accordance with the guidelines of the Ministry of Health and Wellness, MOHW, and other health authorities, they are free to do so as long as it does not impede with the performance of their duties.
An employer has a duty to take care to ensure that work premises are reasonably safe, and must take the necessary steps to provide adequate plant and equipment.
Within the context of COVID-19, you may be required to take steps to increase the cleaning and sanitation of the premises, as well as provide staff working at the premises with personal sanitation material, inclusive of alcohol or an effective hand sanitiser.
The employer will also be required to ensure there is adequate facility for the washing of hands as advised by the MOHW and other health authorities. These may be deemed to be necessary for the discharge of the duty to provide a safe place of work and adequate plant and equipment.
The employer is not strictly required to provide face masks and gloves, but may do so if they deem necessary. They may also be required to institute certain ‘social-distancing’ policies in accordance with the requirements of the Disaster Risk Management (Enforcement Measures) (No. 2) Order 2020, requiring employees to be at least three feet away from each other if needed in the workplace.
Privacy versus safety
The collection of health data of employees constitutes sensitive personal data. While the Data Protection Bill 2017 has not yet been passed as law, constraining employers from the misuse of health data, there remain concerns among the Jamaican public on the use and misuse of sensitive personal data.
Recently, in the case Robinson v Attorney General – the NIDS case – the courts found that the right to privacy in the Constitution of Jamaica encompassed three dimensions: privacy of the person, informational privacy and privacy of choice. In this manner, the mandatory collection of biometric data, which is also sensitive personal data, was an unjustified violation of the constitutional right to privacy.
In a similar way, the imposition of a mandatory collection of health data of employees may be viewed to be a violation of the constitutional right to privacy. Employers and business persons should be aware that there are certain risks or constitutional challenges, which may arise as a result of decisions to do temperature checks.
As to whether an employer can require employees to self-report to the MOHW if they are infected with COVID-19, persons should be encouraged to report to the ministry if they experience any symptoms by calling
The employer can require persons don’t come into work if they are diagnosed with COVID-19, feel sick or unwell, given their duty to provide a safe place of work. Likewise, employers can implement staff policy that employees ought to report to the employer once they test positive for COVID-19.
The disaster risk order requires persons who develop flu-like symptoms who has either travelled to a country affected by COVID-19, or has been infected by the virus, or exposed to a person so infected to immediately inform the MOHW.
If an employee is quarantined, employers should avoid disclosing the identity of the infected employee to protect their personal health information. Employers should undertake measures to protect the workforce without identifying the infected employee.
While employers generally should avoid disclosing the identity of affected employees and protect their personal health information, they should balance this with the need to take measures to protect their workforce generally without identifying the affected employee – unless absolutely required.
Tracking teleworkers, infected employees
If an employee is permitted to work from home because of the pandemic, the question arises as to whether an employer implement a system of electronic surveillance or tracking to monitor teleworking employees to ensure productivity.
While there is no express law which prohibits electronic surveillance, employers may face potential claims of violations of the constitutional right to privacy by employees, given the NIDS case.
There may be a reasonable expectation of the employee to privacy of their home. Productivity may be measured through the completion of specific deliverables or targets, instead.
If electronic surveillance or monitoring is required it is suggested that the employee be notified of this and the express written consent to such procedures is obtained from the employee.
The employer can prevent an employee who has tested positive for COVID-19 from returning to work without a doctor’s certificate.
As stated before, the employer has a duty to provide its employees with a safe place of work. Given that COVID-19 is a highly contagious virus, you may be placing other employees at risk by accepting the employee into the workplace without the requisite clearance from the Ministry of Health or their doctor.
Nevertheless, to the extent possible, employers should avoid disclosing personal information of the infected employee. The returning employee should not be discriminated against on the basis of their diagnosis.
While there is no comprehensive law on equal opportunity and treatment and the constitutional freedom from discrimination does not extend to medical diagnoses, there are certain policy documents which suggest that discrimination on the basis of a medical diagnosis is discouraged.
Likewise, employers should explain that any decision to ask an employee to self-isolate is to protect the workforce.
Employers may discourage travel to any affected area, but they do not have legal authority to restrict an employee’s personal travel. Employers can, however, deny vacation requests based on legitimate business reasons.
Notwithstanding this, there may be contractual provisions requiring employees to comply with the laws, rules and regulations of Jamaica.
If an employee has travelled recently, they are required to self-quarantine, and further, may be contractually obligated to comply with the disaster risk order. Accordingly, the employer may require the employee to comply with the provisions of the order and refuse to allow that employee to return to work during the required period of the self-quarantine.
Justine A. Collins is an attorney at the law firm Hart Muirhead Fatta.