First Published in The Royal Gazette, Legally Speaking, March 2020
The first seven* cases of Covid-19 in Bermuda have been confirmed and the situation continues to develop.
Readers will have felt the effect on their everyday lives for some time, including in the workplace. Employers are facing trying times dealing with measures aimed at countering the spread of the virus.
Perhaps most immediately, employers have been grappling with what steps they can reasonably take to ensure the health, safety and welfare of their employees, as they are required to do by law.
Travel restrictions have already curtailed business and personal travel. Workplaces that can have been transitioning to home-working arrangements while those that remain open are implementing “social distancing” and enhanced hygiene measures in line with the latest Government guidance.
Although there is a risk that any advice given in the current climate could swiftly be superseded by events, we have addressed below some of the other difficult issues that businesses face.
If they haven’t already, employers should remind themselves of any contractual arrangements, policies and collective agreements concerning sick pay. Employees who are signed off sick having contracted the virus will be entitled to be treated in accordance with the employer’s normal sick leave procedures.
The minimum statutory sick pay entitlement is eight days’ paid sick leave per year for employees who have completed at least one year of continuous service. Payment for two or more consecutive days is conditional on the employee providing a doctor’s note, if the employer requests one.
Although not presently obliged to do so, employers may consider relaxing this requirement, to discourage employees from risking spreading the virus by attending their doctor’s office. In his address on Saturday evening, David Burt, the Premier, stated that any employee asked by their employer to produce a doctor’s note should contact him directly and indicated that the issue would be addressed with private businesses.
Certain businesses have been closed by government order. For others, a significant proportion of their workforce could now be subject to isolation and quarantine measures. The Minister of National Security has warned that any guest worker found to be violating a quarantine order will have their work permit revoked. In many cases, organisations have been able to implement remote working measures to allow business as usual to continue, so far as possible.
The Premier stated in strong terms on Wednesday that those employers who are able to implement home-working should do so.
But what is the position where employees who are not sick are nonetheless under quarantine and home-working arrangements are not possible? It will be important to examine the contractual documentation and any relevant internal policies, but it is possible that the employee will not be entitled to sick pay. The employer may also be obliged to continue paying salary.
It is possible that some employees may be reluctant to come into work at the moment, even if not under quarantine restrictions, due to fear of the virus. In this situation, employers should listen to concerns and seek to resolve them if possible, taking into consideration any particular health issues.
Many employees working from home are simultaneously dealing with increased caregiving responsibilities, particularly now that schools are closed. The extent to which employers can adopt flexible working procedures to help employees balance their responsibilities will vary depending on the nature of the business, the duties of the affected employees and the care requirements in the employee’s household.
Employers are highly unlikely to have an existing policy in place to provide guidance in this situation but may consider developing a temporary policy. For example, businesses might consider allowing work to be carried out at different times of the day or agree a temporary reduction in the employee’s hours.
As the effect of Covid-19 on business continues to develop, more organisations could be forced to consider measures such as short-time or shift working, and potentially layoffs or redundancies. In these circumstances, employers must be clear on the legal risks and their obligations to their employees.
The Minister for Labour, Community Affairs and Sports has advised employers and employees to contact the Labour Relations Section for advice on how best to move forward while remaining compliant with employment law. The Minister also announced a financial support package for workers let go as a result of the pandemic.
In these testing times, employers must remain vigilant in relation to potential breaches of anti-discrimination law, for example derogatory comments towards employees whose place of origin is a high-risk country. Any such issues should be dealt with in accordance with the company’s ordinary grievance and disciplinary procedures.
The situation develops on a daily, if not hourly, basis and continues to throw up difficult and novel challenges for both employers and employees. As ever, if employers have any uncertainties about their legal risks in relation to any of the issues discussed above or wish to better understand how they can mitigate these risks, it is best to seek legal advice.
*number of cases at the time of writing
