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07 Jun 2021

Covid-19 and returning to work: what should employers consider?

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As some countries across the globe begin to loosen their COVID-19 restrictions, it’s time for employers to start planning for issues that may arise on the return to the workplace. The legal risks associated with employees retuning to the workplace after a long period of homeworking should be identified and proactively managed. In this e-alert we set out various scenarios that may arise and how employers should respond, in each of the following jurisdictions:

United Kingdom

Refusing to return to work

"One of your employees, who is in a managerial role, is refusing to come back to the office because he says he feels unsafe doing the commute. He has also raised concerns about a clinically vulnerable person that he lives with. Can you insist he work from the office?"

It’s important to recognise that while employers have a statutory duty to provide a safe place of work this statutory obligation does not extend to the employee’s commute to and from work. 

In this scenario, the employer should listen to the employee’s concerns and find out more about their circumstances. For example, can an employee walk or cycle instead of using public transport?  If public transport is unavoidable can arrangements be made to avoid peak travel times and minimise social contact?  As we’ve seen the pandemic is not predictable and in the continually changing landscape employers will need to regularly re-assess the risks and take into account government guidance on safe travel.

Further, given the context of the pandemic and the health risks associated with using public transport, employees may argue that it is a breach of the implied term of trust and confidence to insist they re-commence their commute using public transport.  It will be largely fact-specific and given the success of UK’s vaccination programme this argument may begin to hold less weight. 

Employees also have statutory protection not to be dismissed or subjected to a detriment for refusing to attend the workplace if they have a reasonable belief that they are in “serious or imminent danger” (and the right not to be subjected to detriment in this context was extended to workers on 31 May 2021). Given that the threat posed by the COVID-19 pandemic has previously been described by the UK Government as “serious and imminent” an employee may try to rely on this legal protection when refusing to return to work. Such claimants will need to demonstrate that they have a reasonable belief of such danger, which may be tricky if the employers comprehensively follow COVID-19 secure guidance and measures.

Regarding employees who live with vulnerable persons – employers do not owe any duties of care to those co-habiting with employees.  An employer could take disciplinary action if the employee was refusing to return and ultimately consider dismissal, but it would be sensible for the employer to try to engage productively with the individual to understand the situation, maintain a good working relationship and demonstrate that they are acting with trust and confidence. If the situation is not well managed, the employee may feel they have no choice but to resign and ultimately claim constructive dismissal. 

Flexible working requests

"An employee who has been successfully working from home throughout the pandemic makes a flexible working request to continue doing so post-lockdown. She has requested this for childcare reasons, particularly so that she may home-school her children in the event schools and nurseries are closed again due to Covid-19. As an employer, can you deny this request?"

Employees with at least 26 weeks' continuous service have a statutory right to make a flexible working request to permanently change the terms and conditions of their employment. These changes can relate to the employee's hours, times they are required to work or the location from which the employee is required to work.

Employers may reject a flexible working request on one (or more) of the following grounds:

  1.  The burden of additional costs
  2.  Detrimental effect on ability to meet customer demand
  3.  Inability to reorganise work among existing staff
  4.  Inability to recruit additional staff
  5.  Detrimental impact on quality
  6.  Detrimental impact on performance
  7.  Insufficiency of work during the periods the employee proposes to work; and/or
  8.  Planned structural changes.

In this example, the employer should reasonably consider the employee’s request taking into account their circumstances and their role. They should discuss the request with the employee to enable them to get a better idea of how the changes would work. The employer can refuse the request for one of the business reasons set out above, but employers may find it increasingly challenging to convincingly rely on one of the business reasons where a flexible working arrangement has worked well during the pandemic and no concerns have been raised.

If an employer does refuse a request, it should provide written reasons to the employee explaining the reason why the request has been refused. The process should be completed within three months of the request being made (unless a longer time period is agreed) and an employee can only make one flexible working request in any 12 month period. Any improper refusal of a flexible working request may lead to claims for up to eight weeks’ pay, currently capped at £544 per week or, more often and more concerningly, claims of discrimination (depending on the circumstances) for which compensation is uncapped.

Long Covid

"An employee contracted Covid-19 in April 2020 but continues to suffer from severe fatigue and other symptoms. Since then, he has been diagnosed with Long Covid by his GP and has informed you, his employer, that he can no longer conduct his role as normal. What should you do to support this employee whilst also managing his workload?"

It seems the employee in this scenario has been experiencing Long Covid symptoms for over 12 months and it has impacted his ability to conduct his role as normal.  This means he may be considered to have a disability under the Equality Act 2010, which defines disability as a "physical or mental impairment that has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities." "Long term" means the impairment has lasted or will last for at least 12 months, or that it will come and go or is likely to last for the rest of the person's life. 

Employers with staff who are suffering from Long Covid should be mindful of the possibility that they may have a disability, depending on the severity and duration of the illness. This means that treating an employee with Long Covid less favourably because they have the condition or, for example, have high levels of sickness absence or are unable to fully fulfil the requirements of their role could amount to direct disability discrimination or discrimination arising from a disability. There is no cap on compensation in discrimination cases.

In this scenario specifically, the employer should discuss with the employee how they are feeling and what measures they think might assist them in terms of managing their workload.  The employer should consider implementing reasonable adjustments such as adjusting working hours, implementing a phased return to work, allowing an individual to work from home most of the week or providing access to occupational health support and employee assistance programmes.

Covid testing

"A luxury hotel with several popular restaurants and bars is planning to implement a policy to regularly test all staff for Covid-19. Can this policy be made mandatory? And what can the hotel do if an employee refuses to be tested?"

Employers who want to make testing mandatory should be able to show that testing is an appropriate and proportionate action to take, having carried out the required risk assessments which takes account of the specific workplace circumstances and risk of transmission.

In this specific scenario, as a hotel is a customer facing hospitality business, with a lot of changing visitors, this employer will have sound reasoning on health and safety grounds to mandate testing, given the enhanced need for a safe workforce and little scope for homeworking.  In the case of an employee who refuses to be tested, it may be reasonable for the employer to consider disciplinary sanctions or ultimately dismissal, depending on the circumstances. The employer should also regularly review the latest sector specific advice on Covid-19 for the hospitality industry.

It’s crucial to recognise that there are important data privacy considerations concerning testing and the ICO has issued specific guidance for employers who are planning to introduce testing.  Given data concerning health is classed as special category data under the UK GDPR employers are recommended to carefully consider the data protection implications of any testing policy.

Mental health

"An employee who has been working from home for the past year has informed you, as their line manager, that they have been suffering with depression and anxiety throughout the pandemic. As an employer, how can you support employees in these circumstances?"

The impact of the Covid-19 pandemic on the population's mental health is undoubtedly a serious issue and employers should make every effort to support employees who are suffering from mental health issues.

In this scenario, the employer should discuss with the individual how they are coping, what impact it is having on their workload and any adjustments that the employer can make to support them.  As the employee has been suffering from depression and anxiety for over a year, they may be deemed to have a disability under the Equality Act 2010, and employers should be aware of their duty to make reasonable adjustments.  Such adjustments may include change to the working hours, offering the option to work from the office where feasible and in line with government guidance to help combat isolation, access to any employee assistance programme or mental health support networks that the employer offers, arranging regular catch-ups to keep in touch.  The employer can also consider referring the employee to Occupational Health who will assess the employee's condition and make recommendations for adjustments to their working conditions.

Employers have a statutory duty to ensure the health and safety of their employees (under the Health and Safety at Work Act 1974), as well as a common law duty of care to take reasonable care for the safety of their employees. These duties will extend to work- related stress. Employers should therefore be actively ensuring the health and wellbeing of their employees even when they are working remotely. Failure to do so could give rise to a number of claims, including personal injury claims, breach of contract as well as disability discrimination claims.

France

Refusing to return to work

"One of your employees, who is in a managerial role, is refusing to come back to the office because he says he feels unsafe doing the commute. He has also raised concerns about a clinically vulnerable person that he lives with. Can you insist he work from the office?"

The new French National Protocol (applicable from 9 June 2021) provides that employers will have to negotiate the new remote work rhythm with the trade unions present in the company.

Two situations are possible:

  • If the company has already signed a remote work agreement providing for several days of remote work per week, this agreement will apply from 9 June 2021;
  • If the company has not signed a remote work agreement, the employer will decide on the new remote work rhythm. It is recommended that companies plan several days of remote work per week for all activities that are able to be conducted remotely.

In both cases, the employee will not be able to refuse to return to work without a real reason and without the employer's agreement.

To date, the new National Protocol has not provided for cases where the employee could legitimately refuse to come to work, except when a child’s school is closed. An employee who he feels unsafe doing the commute or who lives with vulnerable persons, cannot refuse to come to the workplace if the employer requires it.

The employee may therefore be sanctioned according to the gravity of the offence (warning, lay-off, dismissal, etc.).

However, in times of health crisis, employers are encouraged to be flexible when an employee expresses genuine concern for their safety or the health of their cohabitee. The aim is to find a balance between the interests of the company and the employee.

Flexible working requests

"An employee who has been successfully working from home throughout the pandemic makes a flexible working request to continue doing so post-lockdown. She has requested this for childcare reasons, particularly so that she may home-school her children in the event schools and nurseries are closed again due to Covid-19. As an employer, can you deny this request?"

In France, schools were closed between March 31, 2021 and May 3, 2021. When schools are closed, employees who are unable to work, even remotely, can benefit from a work stoppage to take care of their children under 16 (Article 1 of decree n°2021-13 of January 8, 2021). The employer may not refuse the work stoppage.

At the end of the lockdown, employees will only be able to benefit from this measure in case of exceptional school closure.

Therefore, the employer will not be required to adjust the working hours of an employee whose children attend school.

However, employers are encouraged to be flexible in order to allow employees to perform their personal and professional duties in times of health crisis.

Long Covid

"An employee contracted Covid-19 in April 2020 but continues to suffer from severe fatigue and other symptoms. Since then, he has been diagnosed with Long Covid by his GP and has informed you, his employer, that he can no longer conduct his role as normal. What should you do to support this employee whilst also managing his workload?"

The National Protocol does not provide for the case of a Long Covid and it has not been envisaged by the other texts relating to the Covid-19.

However, if the employee is declared unfit for his position, the employer will have to follow the usual procedure in case of unfitness.

Thus, unless the labor doctor has expressly mentioned in the medical opinion that “keeping the employee in the company would seriously harm his or her health”; or that “the health of the employee would prevent him or her from being redeployed within the company”, the employer must look for a reclassification position within the company.

If it is impossible to find a new position, the employer may dismiss the employee for unfitness in accordance with the dismissal procedure provided for by the French Labor Code.

Covid testing

"A luxury hotel with several popular restaurants and bars is planning to implement a policy to regularly test all staff for Covid-19. Can this policy be made mandatory? And what can the hotel do if an employee refuses to be tested?"

Since October 29, 2020, the National Protocol provides for companies to offer employees to voluntarily perform a Covid-19 screening, in case of doubt about their virologic status, as soon as evocative symptoms appear.

A circular of December 14, 2020, on the deployment of Covid-19 tests in public and private companies specifies the modes for the implementation of these screening campaigns.

Thus, collective screening by Covid-19 tests can be organized by an employer within targeted populations in case of cluster (suspected or proven) or particularly active circulation of the virus in the department where the company is located.

Screening tests are carried out by companies on a voluntary basis and in strict compliance with medical confidentiality.

The employer cannot therefore force employees to participate in the screening campaign. The employer cannot prevent the employee from returning to his job even if the salary is maintained. Moreover, this refusal cannot result in financial consequences for the employee.

Consequently, the hotel cannot set up systematic Covid-19 tests and impose employees to undergo screening.

In addition, it should be noted that medical confidentiality must be respected. The employer may not, under any circumstances, request to be informed of the results of the tests performed. Only the employee may, if he or she wishes, reveal the results to the employer.

Mental health

"An employee who has been working from home for the past year has informed you, as their line manager, that they have been suffering with depression and anxiety throughout the pandemic. As an employer, how can you support employees in these circumstances?"

Under the terms of article L.4121-1 of the French Labor Code, the employer is required to take all necessary measures to ensure the physical and mental health and safety of all employees.

Surveys carried out since the beginning of the health crisis, in particular those of “Santé Publique France”, have shown a deterioration in the mental health of the French population, including in the professional world.

The Ministry of Labor insists on the importance for companies to take care of the physical and mental health of their employees.

The Ministry of Labor and the French National Research and Safety Institute recommend that managers that:

  • Establish regular reviews with each teleworker;
  • Ensure that the right to disconnect is respected;
  • Adapt the objectives and the monitoring of the teleworkers' activity to their working conditions;
  • Define ways to meet virtually and maintain the link with non-teleworkers;
  • Redefine and communicate what to do and how to organize help in case of an accident or incident;
  • Be vigilant about possible situations of addiction or suffering at work.

Also, if an employee expresses depression and anxiety throughout the pandemic, the employer is recommended to organize a medical visit with the Labor doctor and encourage the employee to use the free-phone number provided for teleworkers in difficulty. 

UAE

For the purpose of this alert, we have focussed on the legal requirements that currently apply to:

  1. Private sector employers and employees subject to Federal Law No. 8/1980 (the “UAE Labour Law”) and the Ministry of Human Resources and Emiratisation Resolution (“MOHRE”) No. 281 of 2020 on remote working in the private sector during the application of precautionary measures to limit the spread of COVID-19 (the “Remote Working Resolution”). Employers based in free zones should take advice on whether the Remote Working Resolution applies to them; and
  2. Private sector employers and employees subject to the Dubai International Financial Centre (“DIFC”) Law No.2/2019 (the “DIFC Employment Law”).

Refusing to return to work

"One of your employees, who is in a managerial role, is refusing to come back to the office because he says he feels unsafe doing the commute. He has also raised concerns about a clinically vulnerable person that he lives with. Can you insist he work from the office?"

Under the various employment and labour law regimes in the UAE, employers are under a duty to protect or maintain the health and safety of their employees in the workplace.

However, that duty does not extend to public transport and the provision of safe passage to and from the workplace. Whilst the majority of commuters in the UAE travel by private car, there will be a sizeable proportion who use taxi, bus, metro and other public transport services and may therefore have legitimate concerns as to the risk of infection. It may provide employees with reassurance to ascertain and discuss with them the precautionary measures that the responsible agency (such as the Roads & Transport Authority in Dubai) is taking to minimise the risk of infection, including requirements on physical distancing and sanitisation practices. 

As to living with a person who is clinically vulnerable, there are no local legal entitlements that would protect an employee from sanction if they refuse to travel to work in order to protect a clinically vulnerable member of their household. Therefore, unless there are genuine concerns about safety at the workplace, it is open to employers to require employees to attend work.

That being said, if an employer is approached by an employee with genuine concerns about their commute and the risk to their health or the health of someone they live with, the employer could, as a matter of good employee relations and in the interest of longer term workplace stability, take time to consider what appropriate adjustments could be made to the employee's working hours, place of work or other arrangements to take account of the employee's legitimate health and safety concerns balanced against the needs of the business (for example, the impact of the request on the employees' direct reports). For example, shifting hours so that the employee would not be required to travel during peak hours (when adequate physical distancing may be more of a challenge to achieve), or considering whether there can be flexibility to allow the employee to continue to work from home in a pattern that still allows them to meet their managerial responsibilities. Additionally, it may be necessary to consider introducing other features to mitigate the loss of in-person management or supervision. 

On a related note, if the employee's has genuine concerns about the workplace itself, then the employee may have stronger grounds to resist returning to work and be protected from sanction for doing so. For example, employees working in the Dubai International Financial Centre and the Abu Dhabi Global Market freezones are expressly protected from being subjected to a detriment or dismissal for refusing to return to their workplace. However, to be protected, the workplace must pose a serious and imminent danger to them (although this does not expressly extend to an employee's family members). If an employer has taken all necessary steps to comply with precautionary guidelines for keeping workplaces safe published by the National Emergency Crisis and Disasters Management Authority and other responsible bodies then the likelihood of this scenario arising will be limited.

Flexible working requests

"An employee who has been successfully working from home throughout the pandemic makes a flexible working request to continue doing so post-lockdown. She has requested this for childcare reasons, particularly so that she may home-school her children in the event schools and nurseries are closed again due to Covid-19. As an employer, can you deny this request?"

There are no statutory rights in the UAE regarding the making or consideration of a request for flexible working. Therefore, an employer may deny such a request as it so chooses irrespective of the rationale for the request. The approach that an employer decides to take will therefore be a matter of employer/employee relations and whether the employer considers that the arrangement will support the operational needs of the business. In this respect, employers should consider that the pandemic has largely shown that flexibility can work well, with minimal loss (if not an increase) in productivity. Where an employer is uncertain about such a proposal, they may be willing to commit to an alternative arrangement. For example, a trial period, or an agreement to allow or consider temporary home-working, or paid or unpaid leave, in the event that schools and nurseries are fully closed in a manner that leaves the employee with no option other than to stay at home.

Long Covid

"An employee contracted Covid-19 in April 2020 but continues to suffer from severe fatigue and other symptoms. Since then, he has been diagnosed with Long Covid by his GP and has informed you, his employer, that he can no longer conduct his role as normal. What should you do to support this employee whilst also managing his workload?"

UAE employers in the Dubai International Financial Centre (DIFC) and the Abu Dhabi Global Market (ADGM) freezones should be mindful of the fact that Long Covid may amount to a disability within the disability discrimination protection regimes contained in the respective employment laws and regulations of those two freezones.

In the DIFC, an employee has a disability if they have a mental or physical impairment or illness which has a substantial and long-term adverse effect on their ability to carry out duties for their employer, which has lasted, or is likely to last, for at least twelve months. The same applies in the ADGM except that the adverse effect must be on the employee's ability to carry out the employee's duties, and so, on the face of it, a lower bar for the ADGM employee to meet. The application of the statutory definitions for disability is yet to be tested in the DIFC or ADGM Courts but, on a literal reading, it appears harder for an employee to gain protection under the anti-disability discrimination framework in the DIFC.

Leaving aside the effect of the condition, it is difficult to determine the length of COVID's effects given how new the virus is. However, it is already evident that they can last for several months. Therefore, it would be wise for employers to take precautions against a potential claim for disability discrimination by considering what steps they might be obliged to take.

A DIFC employer could be liable for a failure to make reasonable adjustments to facilitate a disabled employee's ability to work. Similarly, an ADGM employer may be liable for a failure to make reasonable adjustments to relieve a disabled employee from a substantial disadvantage in relation to any work matter. Employers should think broadly about potential adjustments and look to engage the employee in the thought-process. Ideas that may assist an employee suffering from Long Covid would include: adjusting working hours (e.g. shifted or shorter work day, or moving from full-time to part-time work); reducing workload – potentially by re-allocating work to other team members; permitting a greater level of home-working; or arranging an occupational health assessment.

Additionally, the employer should proactively manage any sickness absence the employee may take due to Long Covid. Again, this might include engaging with occupational health but also making sure that employee is not treated less favourably because they have high levels of sickness absence. Further, where the employee's performance may be suffering due to Long Covid, it is important to refrain from imposing performance measures or sanctions that do not take sufficient account of the reason for the under-performance, as such treatment could be deemed as unlawful direct or indirect discrimination.

Employers outside of the DIFC and ADGM are not bound to the same duties by statute but the above represents good employee relations practice. It should be noted that the sick leave entitlement under the Federal Labour Law that would apply, is substantially more generous than that in the DIFC or ADGM and employers should be cautious about managing an employee whose Long Covid causes them to take leave. They will be entitled to a minimum of 90 calendar days' sick leave of which the first 15 days must be paid at the full rate of pay; the second 30 days at 50% of pay; and no pay for the remaining 45 days; and employees will be protected from dismissal over the duration of any period of leave.

Covid testing

"A luxury hotel with several popular restaurants and bars is planning to implement a policy to regularly test all staff for Covid-19. Can this policy be made mandatory? And what can the hotel do if an employee refuses to be tested?"

The policy may be mandatory on account of the fact that since 28 March 2021, the UAE Ministry of Human Resources and Emiratisation has required mandatory PCR testing of unvaccinated employees every 14 days within the hotel, restaurant, transportation, and health sectors, as well as in the provision of social and personal services in laundries, beauty salons, and hairdressers. An employee's refusal to be tested may lead to disciplinary sanction and or dismissal on the grounds of misconduct on the basis that it would be a refusal to follow a lawful management instruction (in turn mandated by an express legal obligation on employers) and there would minimal recourse for an employee to complain about such treatment.

If the employer is operating outside the specified sectors then the implementation of such a policy will fall within the employer's general prerogative to introduce workplace policies from time to time having consideration of nature of the work being done (e.g. whether it is public or client-facing or not) and the physical arrangements of the workplace. Where a company policy has been implemented, an employee will generally have to comply.

Mental health

"An employee who has been working from home for the past year has informed you, as their line manager, that they have been suffering with depression and anxiety throughout the pandemic. As an employer, how can you support employees in these circumstances?"

The impact of COVID-19 on employees' mental health has been an area of growing concern that has attracted significant and increasing attention since the outbreak of the COVID-19 pandemic. Mental health issues can be the catalyst for various workplace issues such as poor performance and low morale or high attrition. At the same time, it may be the circumstances at work that precipitate or exacerbate an employee's mental health condition. For example, uncertainty created by restructuring and redundancy programmes and multiple dismissals.

Under the various employment and labour law regimes in the UAE, employers are under a duty to protect or maintain the health and safety of their employees in the workplace. That includes mental health. Therefore, it is incumbent on UAE employers to consider what measures they can take to minimise the impact of pandemic working conditions. This might include the introduction of wellbeing policies counselling and employee assistance programmes that provide employees with access to resources to help them cope with new pressures and maintain mentally healthy working environments (including working from home), as well as providing an outlet for them to raise concerns.

Employers in the Dubai International Financial Centre and the Abu Dhabi Global Market should also be especially mindful that an employee's mental illness could meet the statutory definition of disability and thus entitle the employee to the workplace disability discrimination protections in the respective laws and regulations of those two freezones. Therefore, employers may legally be required to make adjustments at work for an employee's mental health condition and also to take care not to discriminate with respect to other aspects of work such as absence management and performance appraisals. 

Hong Kong

Refusing to return to work

"One of your employees, who is in a managerial role, is refusing to come back to the office because he says he feels unsafe doing the commute. He has also raised concerns about a clinically vulnerable person that he lives with. Can you insist he work from the office?"

The starting point is that in Hong Kong employees do not have a right to work from home ("WFH").

Under the Occupational Safety and Health Ordinance (Cap. 509), employers are required, as far as reasonably practicable, to ensure the health and safety at work of all employees. In addition, employers also owe a common law duty of care to their employees to take reasonable care of their safety and to provide and maintain a reasonably safe place of work. 

An employee can refuse to attend work if they reasonably fear that their workplace is dangerous to their health. If an employee is worried about working in the office, or in this case, the commute to and from work, the employer should consider whether his work duties can be carried out remotely and the reasons behind the WFH request. If the employee can carry out his managerial duties from home, the employer should consider allowing him to WFH, especially given that the employee lives with a clinically vulnerable person.

If the employee's request to WFH is for the purposes of shielding themselves as the carer of their vulnerable dependent, then a refusal to allow the employee to WFH, assuming their employment obligations can be discharged effectively may amount to family status discrimination under the Family Status Discrimination Ordinance (Cap. 527). In the event that the employee needs to be in the office to discharge his obligations the employer may consider making his work times more flexible so he can avoid commuting in rush hour or by taking other steps which may help alleviate the employee's concerns.

Employers are encouraged to consider their employee's reasons for their WFH requests and not to unreasonably refuse them. Flexibility is the key to maintaining an engaged and effective workforce.

Flexible working requests

"An employee who has been successfully working from home throughout the pandemic makes a flexible working request to continue doing so post-lockdown. She has requested this for childcare reasons, particularly so that she may home-school her children in the event schools and nurseries are closed again due to Covid-19. As an employer, can you deny this request?"

Although WFH should be treated in the same way as working in the office, employers need to accept that the employee has to supervise her children's government-mandated (at the time of writing) online lessons and therefore during the hours when online classes are scheduled the employee will not be able to discharge her employment obligations. An employer should not direct the employee to return to the office to work as it would be unlawful to leave minors at home alone. Furthermore, the employer would likely be liable for discrimination on the grounds of family status as she would be treated less favourably than an employee without any children.

Employers should clearly communicate their WFH policy and expectations, while also providing support to the employee. The employer and the employee could agree that the employee should inform callers by her voicemail message what time she is available and that calls and messages will be returned as soon as the online lessons end. The employer should agree with the employee what her working hours will be whilst classes remain online and whether the need to take calls from clients can be shared with other colleagues so that the employee can undertake other work which may need to be done outside of normal business hours. The employer should balance consideration for the employee's personal circumstances and their business interests in these unusual and difficult times.

Long Covid

"An employee contracted Covid-19 in April 2020 but continues to suffer from severe fatigue and other symptoms. Since then, he has been diagnosed with Long Covid by his GP and has informed you, his employer, that he can no longer conduct his role as normal. What should you do to support this employee whilst also managing his workload?"

The Disability Discrimination Ordinance (Cap. 487) ("DDO") prohibits the less favourable treatment of an employee on the ground of disability, which is very broadly defined. Long Covid would fall within the definition of a disability. Treating an employee less favourably on the grounds of their disability would constitute unlawful discrimination, unless the employee could not carry out the inherent requirements of their employment due to their disability and requires the employer to make accommodation for the same which would impose an unjustifiable hardship on the employer. The employer should consider the nature of the employee's work, the degree to which his ability to conduct his role has been affected, as well as the cost of accommodation for the employee, before deciding what action to take with an employee who has Long Covid.

Employers who wish to provide support to their employees with Long Covid should ensure that their support is holistic, assisting the employees in recovering from and dealing with the physical ailments as well as the psychological impact associated with Long Covid. This may include respiratory physiotherapy, occupational therapy, talking therapies, etc. Employers may also consider implementing flexible work arrangements such as a combination of home and office-based work, adjusting work hours and allowing time off for rehabilitation and medical appointments.

Covid testing

"A luxury hotel with several popular restaurants and bars is planning to implement a policy to regularly test all staff for Covid-19. Can this policy be made mandatory? And what can the hotel do if an employee refuses to be tested?

The Hotel is also considering introducing a 'no jab no job' policy and wants to ask new hires if they have had the Covid-19 vaccine. Can it do this?"

In this scenario there are competing interests that need to be balanced. On the one hand, employees are required to obey lawful and reasonable orders of their employer, failing which they can be summarily dismissed under section 9 of the Employment Ordinance. On the other hand, employers owe a common law and statutory duty to their employees to ensure that the workplace is safe. Under current government requirements, all employees of catering businesses are required to undergo mandatory testing to ensure the safety of the workforce. Therefore, the policy to require all staff to be tested regularly is intended to safeguard the workplace for employees and customers alike and is a reasonable requirement.  If an employee refuses to comply with such request their employment can be terminated summarily.

In order for an employer to be able to ask new hires to disclose if they have had the vaccine, the employer needs to comply with the Personal Data (Privacy) Ordinance (Cap. 486) which sets out the employer's obligations as a data user. Before the collection of data, employers should inform the employees of the purpose for which the data is to be used, who may have access to the data, the rights of the employee to make data access and correction requests, and the person to whom the employee can make such request. Having obtained the data from its new hires, an employer should take all practical steps to protect the data they hold against unauthorised or accidental access, processing, erasure, loss or use. They should only use the data collected for the stipulated purpose and should not transfer the data to any third party unless they have obtained the prior consent of the employee to do so.  The disclosure of the data should be proportionate with what is necessary. The data should also not be kept longer than is necessary for the fulfilment of the purpose for which the data is used.

As for the "no jab no job" policy, while an outbreak of COVID-19 will have a serious impact on the hotel business, vaccination does not guarantee protection against an employee contracting COVID-19. From medical research carried out to date, it is clear that a person who has been vaccinated may still contract the virus although their symptoms will be less severe than those who have not been vaccinated. Therefore, the vaccination will not protect the workforce as a whole but is more beneficial to the employees individually who will suffer less if they do contract the virus. On this basis, it would not be reasonable for an employer to insist that employees need to be vaccinated to keep their jobs.  It could be unlawful for an employer to try and implement such a policy as employees who suffer from chronic illnesses will not want to take the vaccine which may cause them serious health complications or possibly death. Therefore, an employer which does seek to implement such a policy may find themselves on the receiving end of a claim for disability discrimination.

Mental health

"An employee who has been working from home for the past year has informed you, as their line manager, that they have been suffering with depression and anxiety throughout the pandemic. As an employer, how can you support employees in these circumstances?"

Depression and anxiety would fall within the DDO's broad definition of disability. According to a survey on mental health and wellbeing in the workplace conducted by the City Mental Health Alliance Hong Kong, COVID-19 was found to be the largest contributor to the mental health decline of employees across Hong Kong in 2020. For employers which want to support their employees and try to alleviate their concerns and anxiety, they can consider implementing the following:

  1. Reassure the employees on their job security;
  2. Ascertain from the employees what accommodation/assistance they can offer to assist employees whilst the pandemic restrictions remain in force;
  3. Implement proactive wellbeing initiatives, review medical healthcare insurance to ensure counselling for mental healthcare is included in the insurance coverage;
  4. Create a healthy work culture e.g. encouraging a work-life balance, organising social events, allowing employees to easily voice their concerns and difficulties. 

Singapore

Refusing to return to work

"One of your employees, who is in a managerial role, is refusing to come back to the office because he says he feels unsafe doing the commute. He has also raised concerns about a clinically vulnerable person that he lives with. Can you insist he work from the office?"

The Ministry Of Manpower (“MOM”) guidelines require employers to ensure that no more than half of employees who are able to work from home are at the workplace at any point in time but do not stipulate that employers must allow employees to fully work from home should they feel uncomfortable coming back to the office. If the employee is equipped to perform his job from home, the employer must ensure that they continue to do so far at least half their working time, measured over a reasonable period of time not exceeding four weeks. However, an exception to the above is if the employee is classified as a vulnerable person (defined as aged 60 and above or is immunocompromised or has concurrent medical conditions such as obesity (BMI > 31), hypertension, diabetes, chronic heart and lung diseases, kidney diseases on dialysis, hypercoagulable states, cancer, or is a patient on drugs that cause immunosuppression), then the employer is obliged to pay special attention and should enable him to work from home.

If the employee is living with a clinically vulnerable person, there is no public health action required of the employer and the employer also does not have the obligation to allow him to fully work from home. However, it is important to note that if the employee had a close contact with a confirmed Covid-19 patient in the past 14 days or has any fever or flu-like symptoms, the employee would have to declare this information via SafeEntry and would not be allowed into the office.

Flexible working requests

"An employee who has been successfully working from home throughout the pandemic makes a flexible working request to continue doing so post-lockdown. She has requested this for childcare reasons, particularly so that she may home-school her children in the event schools and nurseries are closed again due to Covid-19. As an employer, can you deny this request?"

Similarly, the employer can deny this request provided that she is allowed to work from home at least half her working time. However, the Tripartite Advisory on Mental Well-Being at Workplaces set out by the MOM encourages employers to implement and encourage flexible work arrangements to help employees meet both their work and personal demands to allow caregivers to meet their personal needs.

Long Covid

"An employee contracted Covid-19 in April 2020 but continues to suffer from severe fatigue and other symptoms. Since then, he has been diagnosed with Long Covid by his GP and has informed you, his employer, that he can no longer conduct his role as normal. What should you do to support this employee whilst also managing his workload?"

The law in Singapore does not provide any specific guidelines on supporting an employee with Long Covid as currently there are no reported cases of Long Covid in Singapore.

Until such time where regulations are issued by the MOM in respect of Long Covid, it is likely that the same rules which govern chronic illnesses will apply to employees with Long Covid. In such cases, the employer usually the power to terminate the employee if, as a result of sickness or other incapacity, he is no longer able to perform the obligations required of his role.

Covid testing

"A luxury hotel with several popular restaurants and bars is planning to implement a policy to regularly test all staff for Covid-19. Can this policy be made mandatory? And what can the hotel do if an employee refuses to be tested?"

Currently, all Covid-19 testing is being strictly regulated by the Ministry of Health (“MOH”). In Singapore, a Covid-19 test is only available to persons (i) suspected of coming into close contact with a Covid-19-positive patient; (ii) showing symptoms of Covid-19 or (ii) permitted by MOH as part of routine testing. The MOH has specifically prescribed that clinical laboratories shall only conduct testing for indications and sub-populations and groups permitted by the Ministry (as set out above). Therefore, the hotel will not be able to mandate this policy as the Covid-19 test kits are not available for purchase for use in the private sector.

Mental health

"An employee who has been working from home for the past year has informed you, as their line manager, that they have been suffering with depression and anxiety throughout the pandemic. As an employer, how can you support employees in these circumstances?"

According to the Tripartite Advisory on Mental Well-Being at Workplaces, employers are encouraged to help employees through running regular mental well-being programmes. These programmes can include lunch-time talks on stress management, emotional regulation, relaxation techniques, mental health first aid or crisis management skills. The Health Promotion Board has promulgated several mental well-being programmes under the Workplace Outreach Wellness (WOW) Package or Workplace Safety and Health Council’s Total Workplace Safety and Health Programme which employers can tap on. Employers can also encourage employees to utilise third-party counselling services under the Employee Assistance Programme provided by the Singapore Counselling Centre. These services would allow employees to speak to a professional on both their work and personal life challenges.

Specifically, it is also recommended that employers can also review the state of employees’ mental well-being regularly as part of risk assessment for workplace health and review HR policies to ensure fair hiring and workplace practices and that performance management systems are non-discriminatory and merit-based in nature.

The Singapore section of the article was written by partner Jason Yang and associate Angeline Yap at Virtus Law LLP (a member of the Stephenson Harwood (Singapore) Alliance). 

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