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    Managing HR Through COVID-19

    A Practical Guide For Multinational Employers

    Prepared by LOGOS

    As at April 1, 2020

     

    Overview

    This guide will help employers manage HR legal and practical issues arising from COVID-19.

    It covers:

    This publication has been coordinated by Mayer Brown and forms part of a wider Mayer Brown Guide for Multinational Employers, which is available here.

    It has been prepared by LOGOS and is published with their kind permission. With thanks to:

    LOGOS |  Ólafur Eiríksson  |  oe@logos.is  |  www.en.logos.is

     

    Good Practice

    There are a number of key good practice points that employers across all jurisdictions will want to consider in connection with COVID-19:

    1.  Keep up-to-date with accurate information

    It is difficult for an employer to make proper decisions based on rumors, assumptions and “fake news”. Therefore, it is important for an employer to stay up-to-date with accurate information and make decisions based on facts. Employers should monitor official sources, including government advisories and the World Health Organization (“WHO“) website, and check that the information they receive is factually correct.

    2.  Know where your employees are and where they have been

    An employer cannot keep its employees out of harm’s way if it does not know where they are and where they have been. As outbreaks of COVID-19 occur in various parts of the world, keep track of which of your employees could be at risk.

    3.  Communicate with your employees

    Employers should communicate openly and often with their employees so that they have the information they need to help keep themselves educated and updated about the coronavirus. It should not assume that all employees will educate themselves or have access to the same sources of reliable information. Putting everyone on the same page will help the employer and its employees move together in a timely manner as a business. Open and timely communication will help build trust and reduce the spread of rumors that may cause anxiety in the workplace.

    4.  Provide a safe platform for employees to raise concerns

    Employers should give employees a safe platform where they can raise concerns on all aspects related to work, from mental health to the risk of having contracted COVID-19. This is not just good employee relations, but early detection and doing something about it can help to reduce the spread of the virus. It is one thing to have an employee assistance plan and ask employees to report issues, but if those who report are stigmatized or treated with contempt, employees may be deterred from reporting.

    There may be nervousness and anxiety in the workplace, and possibly even conflicts, given concerns about the virus. Employees should be given avenues to communicate such anxiety to their employer, so that concerns are addressed earlier and do not balloon into bigger issues.

    5.  If you can be flexible, then be flexible

    Employers should understand that this is a time of stress for all parties, including employees. Recognize that employees will have different needs depending on their circumstances (e.g., those with school-age children may need more time off as school classes are suspended).

    This time of uncertainty will pass but employees will remember how their employer treated them long after the threat of the virus has disappeared. A disgruntled employee may try to make it known to the world how badly their employer treated them. This may affect the employer’s brand and ability to attract and retain talent. The employer may then have to wait for another crisis or challenging time to get the opportunity to prove itself as a good employer.

    6.  One size may not fit all

    While consistency in treatment is generally to be favored, be conscious that one size may not fit all. For example, “work from home” or remote working may not work for everyone. The implementation of general directives should be checked against legal obligations under the contract of employment and local law.

    Action Point Checklist

    In general terms, the steps an employer needs to be taking now relate to four categories: Review, Communicate, Update and Travel. No list of action points will be comprehensive for all employers, but the following will form a good starting point.

    1.  Review

    • Review business continuity plans and how these would be maintained if employees are suffering from coronavirus absences.
    • Review existing sickness policies and procedures. Are they adequately disseminated to staff? Do they need amending?
    • Review contracts of employment. It may be relevant to establish whether or not individuals can be asked to undertake different work or at different locations or at different times from the norm.
    • Review the employer’s emergency procedures, e.g., if there is an infection and the workplace is closed on a temporary basis. If appropriate, carry out a test run of an emergency communication to see how robust the process is.
    • Ensure contact details for all staff are up-to-date.
    • Undertake a risk analysis of high-risk groups of employees, and what steps can be taken to try and reduce risks for those groups. These groups may include:
      • those who travel frequently to countries where there is currently or may well in future be a risk of infection.
      • those with health issues, such as asthma, diabetes, cancer, or those who are pregnant, who are more likely to suffer adversely if they become infected with the virus.
    • Review procedures in the office for preventing the spread of the virus, e.g. increased cleaning, availability of hand sanitizers and tissues etc.
    • Review planning for the possibility of large scale absenteeism. For example:
      • Identifying the essential positions within the business, what needs to carry on during an emergency, and what is the minimum number of employees required?
      • Identifying employees with transferable skills so that these essential positions can always be temporarily filled.
      • Considering flexible work patterns, such as employees working from home.
      • Identifying those employees who have the necessary IT infrastructure to work from home (e.g., remote access to the office computer systems).

    2.  Communicate

    • Identify an appropriate person as spokesperson/communicator of updates on policies etc., with appropriate credibility.
    • What, if anything, is said about absence from work for reasons other than ill-health, e.g., where an office is closed?
    • Assuming the employer has a health and safety committee, have there been any discussions with that committee about COVID-19 and its potential impact?  If there is no such committee, the employer may want to consider setting one up.
    • Communicate as a matter of urgency with the high-risk groups identified in any risk review to ensure they are aware of their high-risk status and the measures that are being taken to assist.
    • Ensure managers are aware of the relevant workplace policies.
    • Consider issuing guidance to employees on how to recognize when a person is infected with the coronavirus.  What are the symptoms, and what should one do if one is taken ill at home or at work? It is also important to emphasize that individuals may not recognize that they have the virus and so may not be exhibiting symptoms. Employees should be informed of the reporting procedure within their employer if they have a potential infection as well as any official reporting process.
    • Provide advice to encourage individuals to take a degree of responsibility for their own health and safety and to slow the spread of the virus.  For example, advice on handwashing and use of sanitizer gels, coupled with a willingness to self-identify where it is possible that individuals have come into contact with individuals with the virus, have become infected themselves or have returned from private travel abroad to an area which turns out to be affected by the virus.
    • Make clear that where staff are ill, they must not come to work regardless, i.e., “struggle through”.

    3.  Update 

    • Initiate a system to keep up-to-date, especially given the speed at which infection is spreading.
    • Consider establishing a committee on the employer’s side to coordinate responses and engage with any staff consultative forum, and with particular responsibility for staying up-to-date with public health updates.
    • How will employers communicate to employees regular updates on the coronavirus and its spread? As news develops, it is extremely important for an employer to be issuing fact-based updates, to avoid the possibility of fear being used by worried employees to make decisions about whether or not to come to work, whether to travel abroad, etc.
    • Who will have the authority to determine changes to policy and issue any new communications to staff?

    4.  Travel

    • Log employee travel before it is booked and check against the latest travel protocols.
    • Ensure staff know that this applies to personal travel as well as business travel.
    • Encourage staff to tell you if close family members with whom they share a house are travelling to infected areas.
    • Replace face-to-face meetings (especially those involving travel) with video conferences, telephone conferences, etc.
    • Consult/communicate about whether to encourage varied work patterns to avoid travelling on public transport at rush hour.

     

    Country Overview

    As at April 1, 2020

    1.  What are an employer’s main legal obligations?

    With respect to the underlying purpose of the Act on Working Environment, Health and Safety in Workplaces No. 46/1980, an employer is generally obliged to ensure, so far as reasonably practicable, that the work environment is safe and healthy, and in line with social and technological developments in society.

    Further, under Article 1(1b), an employer must ensure that any health and safety issues arising in the workplace can be resolved within the workplace in accordance with applicable legislation, guidelines from employers and employees and instructions and guidelines from the Administration of Occupational Safety and Health.

    2.  Do I need to prepare for and have in place a workplace plan to deal with COVID-19?

    Employers in Iceland are not subject to a specific legal obligation to prepare for and have in place a workplace plan to deal with COVID-19. However, according to guidelines from the Directorate of Health and the Department of Civil Protection and Emergency Management in relation to COVID-19, it is advised that employers have a contingency plan in place. The Administration of Occupational Safety and Health has issued similar guidelines, instructing Icelandic workplaces to draw up appropriate action plans and response plans. According to those guidelines, managers are responsible for informing employees about the company’s contingency plan and what rules apply to their operations during the COVID-19 outbreak.

    3.  What should a workplace COVID-19 response plan cover?

    The Directorate of Health and the Department of Civil Protection and Emergency Management has issued guidelines for workplaces, which set out the guidelines on preventive measures that may be taken.

    The Administration of Occupational Safety and Health has encouraged all workplaces to watch out for the safety and health of their workers as much as possible, and has also issued two separate guidelines on how to protect their workers from possible COVID-19 infection:

    For general guidance on the contents of a workplace COVID-19 response plan, please review the Appendix, in conjunction with the Action Point Checklist.

    4.  Can I direct my employees to go home or stay at home if there is an outbreak?

    Yes. Under the guidelines issued by The Administration of Occupational Safety and Health (on hazard assessments and preventive measures at workplaces in response to the risk of COVID-19 infection), the employer should inform employees when they are expected to be at the workplace engaged in their normal tasks and when they are expected to work from home or stay away from the workplace. The employer can instruct employees not to turn up for work if they have cold or flu-like symptoms, even if these are only mild and are not typical for COVID-19 and are not likely to be caused by COVID-19.

    5.  Can I direct an employee to see a doctor?

    An employer cannot legally direct an employee to see a doctor, as it is severely invasive. The employer may, however, request a doctor’s note verifying the alleged condition of the employee, cf. Article 8 of Act No. 19/1979.

    6.  Do I have to continue to pay wages and provide other employment-related entitlements during a COVID-19 outbreak?

    This depends on various factors. Generally, an employer is not required to continue to pay wages and provide other employment-related entitlements if the employee is not performing their duties. However, employees that are quarantined by the Directorate of Health and Department of Civil Protection and Emergency Management are entitled to wages and other employment-related entitlements while quarantined. If an employee decides, of their own accord, to stay at home due to the COVID-19 outbreak, the employer would not be required to continue paying their wages.

    7.  Can I quarantine certain staff to certain parts of an office or send them to a different office?

    Yes. Quarantining certain staff to certain parts of an office or sending them to a different office would be viewed as an appropriate protective measure due to the risk of COVID-19 infection.

    8.  Can I direct my employees to report suspected cases of COVID-19?

    Yes. According to the guidelines of the Directorate of Health and the Department of Civil Protection and Emergency Management, when a risk of infection is considered, each employee is required to inform a manager if it is suspected that an employee or client is infected with COVID-19.

    If suspicion of COVID-19 infection arises in a company, staff should contact 1770 (or +354 544 4113, if no Icelandic phone line is available). This number has been activated to respond to queries relating to illness 24/7, and nurses will advise on how to access health care services appropriately.

    9.  Can an employee lawfully refuse to attend work if there is a COVID-19 outbreak?

    If the employer has taken all reasonable protective measures under the COVID-19 guidelines published by health authorities, and the employer’s operations are running as usual, an employee cannot lawfully refuse to attend work despite a COVID-19 outbreak. Employers are, however, encouraged under these strange circumstances, where possible, to allow employees to work from home.

    10.  Can I screen employees and customers before allowing them to enter the workplace?

    The Directorate of Health and the Department of Civil Protection and Emergency Management have issued guidelines on preventive measures at workplaces in response to the danger that COVID-19 poses. Those guidelines encourage employers to take various precautionary measures, such as providing contactless payment solutions, ensuring that individuals keep a minimum two-meter distance between them, and making hot water and soap available, but they do not, however, mention screening. In that respect, with regard to the principle of proportionality, screening employees and customers could be viewed as violating their right to privacy. According to Icelandic law, a physical examination may not be carried out except by a court order or by law.

    CONTACT:  LOGOS  |  Ólafur Eiríksson  |  oe@logos.is  www.en.logos.is

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    Appendix:  Workplace COVID-19 Response Plan

    A plan should deal with the following:

    BEFORE AN OUTBREAK

    • Preventive measures.
    • Disinfecting the workplace regularly.
    • Maintaining good indoor ventilation.
    • Making sure that employees, suppliers and customers are aware of the employer’s plans in the event of an outbreak.
    • Ensuring sufficient supplies of appropriate masks, alcohol wipes, gloves, paper towels, thermometers, disinfectants, etc.
    • If employees are required to travel to areas known to have the virus, whether such travel is necessary.

    DURING AN OUTBREAK

    • The steps the employer will take to ensure the safety of employees while at work during a COVID-19 outbreak include how an employer will identify risks of employees becoming infected and how to minimize such risks. The employer may also wish to seek advice from government/official sources as to what steps need to be taken, e.g., quarantine requirements.
    • Communication strategies such as how and what information will be communicated to employees, suppliers and customers.
    • Where employees will work, e.g., home, in the office or in alternative temporary offices.
    • At what stage will the workplace be closed and who will decide that.
    • How to deal with infection and/or deaths of colleagues, e.g., counselling.
    • A mechanism for determining whether employees, suppliers and customers will be allowed access to the workplace, especially if they show symptoms of being infected by COVID-19.
    • What to do with high-risk/exposure staff (e.g., pregnant, key employees and employees who travel).

    AFTER AN OUTBREAK

    • Ways to ensure that employees and customers have fully recovered before they are allowed back into the workplace.
    • Rehabilitation for sick employees returning to the workplace.

    Communication with employees and flexibility on enforcing requirements imposed on employees under their contract of employment will be important in maintaining employee relations and reducing anxiety and panic during an outbreak. Therefore, subject to local legal obligations and requirements, and depending on the circumstances, employers may wish to:

    • Discuss with staff the possibility of a workplace closure prior to closing.
    • Allow employees to take annual leave or unpaid leave once sick leave has been exhausted.
    • Allow employees to work from home.
    • Explore salary reduction or unpaid leave as an alternative to termination of employment where business has slowed down.

    Employers should make visitors to its offices aware of any health and safety hazards associated with entering the workplace before any intended visit, where reasonably practicable.

     

    This publication by LOGOS provides information and comments on legal issues and developments that may be of interest to our clients and friends. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek legal advice before taking any action with respect to the matters discussed herein.