The coronavirus COVID-19 pandemic is unfortunately now in Uganda. The raft of measures by the World Health Organization (WHO), and governments across the world (including our own) to contain the spread of the virus have resulted in an unprecedented disruption of business and day-to-day life.
Several nations across the world are under lockdown, many have imposed some form of restriction to the daily life of citizens while international travel is all but impossible. The question that every employer is faced with now is how to respond to both global and local impacts of the coronavirus COVID-19 pandemic, which can now be felt in every workplace.
The worldwide lockdown and the ban or restriction of international travel has either disrupted business or literally brought it to a grinding halt in some sectors of the global economy such as the logistics sector and in tourism and hospitality.
Some employers particularly those executing EPC contracts may have suffered force majeure events that have rendered them incapable of performing their contractual obligations and many are unable to deploy their human resources to any productive purpose on account of these disruptions.
Can such employers impose collective terminations and/or redundancies on account of the global impacts of coronavirus COVID-19?
Guidance from the Ugandan Minister of State for Labour
The Ugandan Minister of State for Labour has already issued a statement warning employers not to unnecessarily lay off workers and to consult with the Ministry of Labour before imposing such measures. Notwithstanding the ministerial pronouncement, the legal requirements for imposing collective terminations and/or redundancies are well established under the law and an employer must be armed with a rationale triggered by economic, technological and structural reasons i.e. the ETS test.
It is without a doubt that the global effect of coronavirus COVID-19 may already have impacted some employers so much so that they would fit within the ETS test. Without a bailout from the government to rescue vulnerable sectors as it has been in some countries, it would be difficult for the Ministry of Labour to prevent the laying off of workers in these sectors in Uganda.
The role of the Commissioner for Labour in this regard would be to ensure that employers do not unnecessarily invoke the provisions of section 81 of the Employment Act and impose collective terminations where there are no ETS factors.
It is therefore not a matter to be taken lightly. The redundancy option should only be explored if it is intended to prevent the employer’s imminent bankruptcy or business viability.
Employees trapped in other countries due to lockdown or ban on international travel
Some employers may have employees who are trapped overseas on account of coronavirus COVID-19 measures including travel bans, quarantines or lockdowns. These measures could have prevented employees from reporting to work as required and would necessitate that employers exercise flexibility with their leave policies as the employees’ absence would be on account of circumstances beyond their control.
Absence from work on account of the occurrence of exceptional events preventing an employee from reaching his or her workplace would constitute absence with good cause and would not attract disciplinary measures, and the employee would be entitled to remuneration during such period of absence.
Implications of coronavirus COVID-19 to employers in Uganda
Occupational safety and health implications
The primary responsibility of the employer in light of the pandemic is to undertake measures as far as is reasonably practicable to protect its employees and the general public from any hazards that would arise from the workplace (Section 15 of the Occupational Safety and Health Act 2006 (OSHA)).
The larger employers (with over 25 employees) are required by law to have in place an Occupational Safety and Health (OSH) policy. This is the time to deploy this policy by first and foremost evaluating the risk and unique hazards posed by coronavirus COVID-19 and then develop strategies to protect employees and the public from the spread of coronavirus COVID-19 at the workplace. All this must be done with the full involvement of the employees’ safety representatives.
It is worth noting that the entire cost of OSH interventions including the procurement of protective gear and the purchase of preventative aids like hand sanitisers at the workplace must be met wholly by the employer.
A robust OSH protocol would play out as follows:
- Conduct a coronavirus COVID-19 risk assessment with worker participation;
- Identify the hazards that are unique to the employer’s establishment;
- Come up with strategies intended to prevent, mitigate or respond to OSH risks;
- Sensitize and train workers on preventive measures;
- Display of OSH notices in conspicuous places at the workplace;
- Encourage social distancing and prohibiting physical greetings like handshakes and hugging;
- Imposing mandatory work-from-home measures for vulnerable persons e.g. pregnant women, the disabled, employees with pre-existing diseases, etc.; and
- Roll out contingency measures to respond to the variety of OSH issues caused by coronavirus COVID-19.
Other measures to be implemented by an employer
Premised on these unique circumstances an employer may implement a raft of alternative working arrangements that suit its business.
Offsite working arrangements
Employers could consider flexible working arrangements such as allowing employees to work remotely. This would require employers to develop work from home policies that are fit for purpose and also ensure that employees have the technical and logistical support to carry out their duties remotely by providing laptops and mobile devices where necessary.
These measures may however have OSH implications to the extent that the employee’s home or other location becomes a workplace hence extending the scope of workplace liability to the domestic setting. An employer would be well advised to inspect and or set clear safety guidelines for offsite work to ensure that it does not repudiate its worker’s compensation insurance. Engaging the insurance providers about these arrangements may be advisable to avoid repudiation of the workers compensation insurance policy in the event an employee suffers injury in the course of executing his/her duties outside the formal workplace.
The employer may, based on the OSH risk assessment, impose shift-working cycles to limit the numbers of employees at the workplace at any one time. There may be certain contractual restrictions on night work for those who may have been contracted to work at specific times of the day, but this does not preclude the employer from imposing variations if it is borne out of safety considerations and is not intended to victimize some employees over others.
Rights of employees impacted by coronavirus COVID-19
Employees who are quarantined and/or are required to self-isolate without being ill are entitled to wages for the period of absence since such absence would be on account of reasons beyond their control. Such may not necessarily fit within the sick leave policies or other leave arrangements, but the Employment Act 2006 still guarantees their pay since their absence would be attributable to exceptional events preventing an employee from accessing his or her workplace (Section 41(6) of the Employment Act).
These are employees who may not manifest any symptoms but may have been infected with the virus, without any signs of illness to be able to fit within the employer’s sick leave policy.
Employers are encouraged to take a liberal interpretation to their existing sick leave provisions as not all coronavirus COVID-19 scenarios will fit within the four corners of the policy, yet prevailing medical advice recommends self-isolation. Employees in this category would therefore have to be accommodated under the sick leave provisions.
Employees with coronavirus COVID-19 symptoms
Sick pay provisions would naturally extend to all such employees, together with the attendant sick pay.
The statutory threshold for sick pay extends to two months before an employer may consider termination on grounds of medical incapacity. Some employers provide longer paid leave periods.
What happens if sick leave is exhausted?
An employer may consider providing unpaid leave for any period beyond the contracted paid sick leave period. However, if the virus was acquired in the course of duty, the Worker’s Compensation Act Cap. 225 would kick in to provide compensation for any period up to 96 months.
What can be done about employees who refuse to come to work?
Employees must report to work unless instructed otherwise by their employers.
Employees who refuse to come to work must have valid reason for their absence. The mere presence of the coronavirus COVID-19 in Uganda does not constitute a good case to stay away from work without authorisation, but employers should be ready to listen to any reason that would have prevented employees from reporting to work to determine if such reason constitutes good cause.
Can an employee be dismissed due to coronavirus COVID-19?
An employee who has exhausted his/her sick leave may be terminated on grounds of medical incapacity.
However, employers have to be careful in imposing terminations.
Where the virus was acquired in the course of employment, an employer would have to provide sick leave for a prolonged period (up to 96 months) and compensation for death if the employee succumbs to the virus.
Can employers consider redundancies due to the impact of coronavirus COVID-19?
We considered the global impacts of the virus which may cause collective terminations.
It is not envisaged that the pandemic in and of itself would be a justifiable reason for imposing redundancies. However, should a large number of employees be infected, an operational need could possibly arise in future to fit within the ETS reasons.
Benefits for employees who succumb to coronavirus COVID-19 in the course of duty
Along with all other contractual benefits the deceased employee’s estate would be entitled to:
- 60 months’ pay (covered by workers compensation insurance)
- Severance pay
- Other contractual benefits
Implications of a short-term closure and/or temporary governmental lockdown
The possibility of a lockdown by government is increasingly eminent. Should such measures be imposed, employees would as a matter of right be entitled to wages for the duration of the lockdown, on account of exceptional circumstances preventing them from performing their contracts of employment.
As to whether employers can reckon this period as annual leave is arguable depending on the unique circumstances of the employer, but the critical policy consideration would be the assurance of wages during this period. Employers who are unduly impacted by these measures may as a last resort consider temporary layoffs if they fit within the ETS test.
The direct and indirect impacts of coronavirus COVID-19 have imposed disruptions in unprecedented proportions. As unfortunate as it may be, it has offered some employers the opportunity to test the robustness of their disaster preparedness and OSH systems. For others, it has offered the perfect opportunity to leverage on technology to minimise on the impacts of such disruptions.
The virtual workplace is no longer a matter of science fiction and now more than ever is becoming a necessity more than a luxury, notwithstanding that it comes with unique challenges in terms of the extended scope of the workplace and emerging risks of data protection and cyber security.