The situation is more complex for employers operating across jurisdictions with the need to understand and comply with local government guidance and a number of domestic laws.
Amid the rapid spread of Covid 19 across Europe and Italy in lock-down, it is imperative that employers keep up to speed and take legal advice at the relevant time. Some jurisdictions are implementing emergency legislation to address specific issues raised by the Covid 19 outbreak. As the social and economic impact of the public health emergency deepens, we offer five important considerations for businesses.
1. Put together a designated team operating on a domestic level but with an international overview
A designated team in the business, focusing on coronavirus planning that is accountable for actions, will help employers stay on track in a fast-developing situation. If you have expertise in the business on health and safety and business continuity, a representative from each in the group will be very useful. Input from HR, IT and Facilities Management teams will be needed as a minimum. Depending on your industry, other specialists may also be required. While focus will inevitably be driven by the needs in a particular location, it will be important that the team has an international watch. There should be an understand of why different approaches in different jurisdictions are needed, while looking for consistencies where possible.
Directors or other individuals holding statutory or regulatory responsibilities will also need to be alert to their specific duties and obligations to the business in dealing with the issues arising from Covid 19 and carefully document the decisions made.
2. Keep on top of the latest guidance relevant for each jurisdiction as the situation rapidly evolves
There is a wealth of guidance available from the World Health Organisation (WHO), local governments and other domestic organisations of which you will need to remain on top. This guidance should be reflected in the relevant workplace policies and procedures and an effective communication strategy across the domestic and international workforce implemented. Differing government guidance on travel and requirements to self-isolate is an area where particular thought will need to be given to how that translates across a global workforce. Our local experts will be able to point you to the resources in your jurisdiction to keep you up to date.
3. Put in place good practice steps in each physical work location to reduce the risk of exposure.
Coronavirus as an illness that could make employees – or others with whom the business interacts – sick – is likely to be a material risk for many employers and requires consideration. This will be in terms of how it can be eliminated or controlled in the workplace under relevant domestic health and safety laws. HO and local government guidance that affects employers in general, as well as those in specific sectors, should be followed as a minimum.
Generally, there are a number of good practice and now well-publicised steps that all employers should take, regardless of location. Employers should:
- carry out a risk assessment of the impact of coronavirus in each workplace;
- ensure high levels of hygiene. Encourage staff to wash hands with hot water and soap and provide hand sanitisers and tissues. Consider whether protective face masks would assist those working in vulnerable situations;
- have readily available best practice steps for where an individual becomes unwell in the workplace;
- ensure contact numbers and emergency contact details are up to date; and
- be alert to any vulnerable workers, for example, pregnant employees or those with underlying health conditions which make them more vulnerable to the virus. Are there any adjustments needed or changes that should be made to their working practices?
Consider the differing roles of those carrying out duties in your workplace. Cleaners and other contractors will have a key role to play. Speak to them about not only advance provision but also the day-to-day need (and keeping them safe). If you have caterers or those working with food, they will need enhanced procedures to deal with any sign of sickness. Reception staff will also be more vulnerable because of contact with people. All these services also play a key role in reinforcing corporate messages to the workforce and helping you keep things running smoothly.
4. Introduce clear and transparent policies to ensure consistency in managing certain scenarios;
build in sufficient flexibility to reflect the real time circumstances
Clear and transparent policies on how different scenarios in each location will be managed should be put in place. Again, care must be taken given the variations between jurisdictions depending on local employment laws, the existence of any Works Council or other collective forum or agreement governing employment terms; together with the actual duties an employee is undertaking and their own individual rights under their terms and conditions of employment.
For employers, key questions to tackle include:
|Travel||What guidelines should be put in place on business and personal travel?|
|Health checks||Is it permissible to undertake at work health checks or require employees to undertake medical examinations on request? Can employees be required to confirm if they are “at risk”?|
|Pay||What must an employee who is required to self-isolate following local government advice be paid?|
|Homeworking||What rights do you have to require home-working? If an employee cannot home-work what is their position if they are unable to come into work? Stress test your IT systems.|
|Caring for others||What rights does an individual have to take leave to care for a dependant?|
|Policies||How are managers kept updated on the current situation and the relevant employer guidelines and policies? Do they understand them and know who to ask assistance from?|
|Refusal to comply||Can an employee refuse to attend work or undertake any business travel?|
|Reporting obligations||Are there any reporting obligations to government or other local bodies? Will there be a requirement to close premises for health and safety reasons? What is the position in respect of employees when this occurs?|
|Reducing financial loss||What steps are available to you to mitigate financial loss? What is the legal position in relation to any contracts? Are any losses covered by insurance?|
|Closure of the workplace||What is the legal and procedural position in respect of your employees on a temporary or permanent closure of the workplace?|
Any policies introduced must be applied consistently and fairly. Particular care must be taken to ensure that any policies or procedures introduced do not inadvertently discriminate against any individuals. Likewise, steps should also be taken to ensure that no member of staff or any customers or suppliers are treated differently because of their nationality, race or ethnicity. Staff should be reminded that jokes and banter could be unlawful harassment.
It will be important to also consider any specific individual circumstances. Is an employee working any certain immigration requirements? Does the employee have an underlying health condition making them particularly vulnerable if they are exposed to the virus? We will be happy to advise further on these issues.
5. Have a strategy for the potential impact of coronavirus on your ability to meet client demands.
With the coronavirus taking hold, employers must consider how they will deal with any longer term impact on their business:
- What is the impact on any commercial contracts? Is there any insurance coverage for some of the losses that may arise from Covid 19, including employment losses.
- Will they need to meet business demands with reduced staff; if so, will individual employment contracts or commercial contracts with clients need to be mutually changed? Can temporary staff be brought in?
- Will an employer find itself in a position where reduced business demands or withdrawal of contracts with suppliers etc. require a reduction in employees, temporarily or permanently.
While it is hoped that these scenarios do not arise, it is important that you have a handle now on the options available, any specific procedural requirements and the time-frames involved, as well as the potential financial repercussions. Indeed, there are a number of options to consider in reducing costs before make any more permanent decisions are made. Any proposals to make redundancies in the wake of coronavirus will require consideration to be taken of the specific legal obligations associated with this in the relevant jurisdiction, including any collective consultation obligations which may be triggered and individual employment rights. You will also need to factor in employee relations and reputational issues, particularly at a time when many individuals will be feeling particularly vulnerable.
Our lawyers across our jurisdictions are keeping up to date on the latest guidance and advice on Covid 19 issues and the impact this has on the workplace. Please contact your usual Osborne Clarke contact for further advice on managing the impact of coronavirus on a global basis or one of our specialist lawyers below.