Mitigating the Impact of Coronavirus on Employment in Uganda –What the Law says; EXPERT OPINION

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    The Coronavirus Pandemic has affected various aspects of business world over. During such situations, decisions are taken, at times without considering the legality of the matter. Companies have scaled down staff, while many others have responded with layoffs due to uncertainties in sustainability of staff. But what does the law say in such a ‘coronavirus’ situation?

    Legal brains at MMAKS advocates have developed a compilation of frequently asked questions in relation to the legal implications of COVID-19 in Uganda in the area of employment.

    Is an employer legally obligated to notify employees if any of their employees is infected with the Coronavirus?

    An employer is not legally obligated to notify employees if any of their employees is infected with the COVID-19 virus. The Public Health Act (PHA) however empowers the Minister of Health, in respect of an infectious disease to make rules setting out inter alia duties of employers in relation to the infectious disease. No rules have been made yet in relation to coronavirus.

    The Occupation Health & Safety Act (OHSA) requires employers to provide employees with a safe working environment and also makes it an offence for employees to willfully or recklessly do anything likely to endanger the safety or health of fellow employees.

    In practice, employers are advised to appropriately disclose that someone in the workplace has been exposed to coronavirus, without disclosing the identity of that employee in order to protect their privacy. The employer should also advise employees to self-quarantine in such event and seek medical advice if they have any symptoms of the virus.

    Can an employer be legally compelled to notify the local health ministry, either proactively or in response to a request from the ministry or a government agency in case an employee is infected with the COVID-19 virus?

    An employer is under a legal obligation, pursuant to Rule 3 (1) of The Public Health (Control of Covid19) Rules, 2020 (issued on 25th March 2020) notify the local authority upon becoming aware that any employee is infected with an infectious disease. The local authority is in turn under an obligation to inform the Medical Officer of Health. This obligation was hitherto set out in Rule 3 (1) of The Public Health (Notifiable Diseases) Rules SI 281-21. 2.

    Is there an obligation to close a place of work if an employee is infected? At what stage can the employer reopen the place of work?

    Yes, the Occupational Safety and Health Act, 2006 (the OSHA) imposes a duty on employers to ensure the safety, health and welfare at work for all persons working at the work place. The OSHA imposes a legal obligation on employers to take various measures to protect their employees from the spread of coronavirus which would likely require closing so that the premises can be thoroughly disinfected.

    Are there any issues with forcing employees to work from home?

    Employment contracts often set out the places at which employees shall work and these are typically not limited to the official work place, and include any other place as the employee may be notified. Accordingly, an employer may require its employees to work from home. Even without such a provision, if the reason is to ensure the health and safety of the employees, an employer would have good grounds for requiring employees to work from home. The recommendation from Government for employees to work from home is clearly good reason in the current circumstances.

    How can employers cut wages for employees? For example, can employees be asked to stay away from work in exchange for reduced pay without triggering redundancies?

    The Employment Act expressly prohibits reduction in wages save with the consent of the employee.

    Can an employer force employees to take outstanding leave days?

    Under Uganda law, leave is taken at such times as may be agreed upon between the employer and the employee. The consent of the affected employees should therefore be sought before an employer can force its employees to take their outstanding leave days.

    The Industrial Court has however held that in exceptional circumstances, employers can without the employees’ consent, send employees on forced leave. The COVID-19 pandemic would typically fall in such exceptional circumstances.

    Can employers force employees to go on forced paid leave or unpaid leave during this time?

    Under Uganda law, the consent of the affected employees should be sought before an employer can force its employees to go on forced paid leave or unpaid leave. The Industrial Court has held that in exceptional circumstances, employers can without the employees’ consent, send employees on forced leave. The coronavirus pandemic would typically fall in such exceptional circumstances the fundamental basis being everyone’s safety.

    What should an employer do if an employee doesn’t want to come at work because he/she is afraid of being infected at the workplace?

    Employees are not allowed to be away from the workplace without authorization or good cause. Where the employee has no reasonable basis for the fear, any absence could be deducted from their leave days or be construed as abscondment.

    What duty of care does an employer owe to their employees during this time? Accordingly, what liabilities arise on an employer if an employee is infected at the place of work?

    The Occupational Safety and Health Act, 2006 (OSHA) imposes a legal obligation on employers to take various measures to ensure that the workplace is safe for all employees. Employers must therefore put in place measures to protect their employees from the spread of coronavirus at the workplace.

    Contravention of any provision of this act is an offence for which the person charged would upon conviction be liable to a fine not exceeding Ugx 480,000 or imprisonment for a term not exceeding 12 months.

    If an employee is infected at the place of work, an employer is liable under the Workers Compensation Act, Cap 225 to compensate the employee for work related infections/injuries. Infections/injuries resulting from deliberate and willful misconduct of the employee are however excluded.

    Can the quarantine period be deducted from an employee’s annual leave or sick leave? What if the period exceeds the employee’s sick leave entitlement?

    The quarantine period can be deducted from an employee’s sick leave. Where the period exceeds the employee’s sick leave entitlement, such period should be deducted from the employee’s annual leave.

    Can terms of employment be renegotiated during this period of the pandemic?

    Any term of employment such as working hours, remuneration and leave days entitlement can be renegotiated during this period provided the employer consults with the employees prior to making any amendments to their terms of employment, and the employee expressly agrees to the changes. An employer is required under Section 59 (4) of the Employment Act to issue a written notice of such changes to the employee.

    Can employees be asked to reduce the number of hours they work so that they are paid based on the number of hours worked (salary is reduced accordingly)?

    Yes, an employer may request the employees to reduce the number of hours they work so that they are paid based on the number of hours worked. However, an employer must consult with the employees prior to making any amendments to their working hours and to their salaries. The employees’ consent must also be obtained before effecting such changes. Employers should document the consent of the employees.

    Do employers still need to pay full salaries to employees if the nature of their job is that they are unable to work remotely but need to stay home to be safe from the virus?

    Yes, employers still need to pay full salaries to employees if the nature of their job is that they are unable to work remotely but need to stay at home to be safe from the virus.

    Can employees who cannot work remotely be forced to take annual leave during this period? Yes, employees who cannot work remotely can be forced to take annual leave during this period. However, the consent of the affected employees should be sought.

    Can employers make employees redundant merely due to the fact that a pandemic exists?

    Employers may terminate employees’ employment contracts on account of redundancy (due to economic reasons) provided that they believe that it is for a reasonable cause and that they are able to demonstrate that there is a valid justification for the proposed redundancy.

    What is the legal position on sick leave? Is it 30 days or 7 days with full pay and 7 days with half pay?

    The Employment Act provides that an employee who has completed not less than one month’s continuous service who is incapable of work because of sickness is entitled to sick pay, i.e., full wages and every other benefit for self and family for the first month. An employer can terminate an employee on this basis only after the third consecutive month of absence from work.

    What is an employee entitled to when they are working remotely? What are the benefits an employee is entitled to when working remotely?

    Employees are entitled to their usual employment benefits as stipulated under their employment contracts (such as salaries and leave entitlements etc.) when they are working remotely. They would not, however, be entitled to benefits that require that they are physically present at the workplace (such as transport to the office benefits, free lunch etc.)

    Should an employer have a written COVID-19 policy?

    Yes, it is recommended for employers to have a written COVID-19 policy as a measure to help protect workers from infection and protect employers from liability.

    Would directors and officers be held liable for not doing enough if someone caught the coronavirus and spread to other staff members?

    Yes, directors and officers may be held liable under the Occupational Safety and Health Act, 2006 (OSHA) for not doing enough if someone caught the virus and spread to other staff members.

    Can an employer make an employee perform other jobs when their core functions are down (for examples, if sales are down)?

    Yes, an employer may make an employee perform other jobs when their core functions are down. However, an employer must obtain the consent of the employee prior to making any amendments to their duties and responsibilities.

    The content of this document is intended to be of general use only and should not be relied upon without seeking specific legal advice on any matter

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