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    Managing HR Through COVID-19
    A Practical Guide for Multinational Employers

    Prepared by Mayer Brown

    As at June 10, 2020

     

    Overview

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

    1. Good Practice Guidance giving high-level consideration;
    2. An Action Point Checklist drilling down into the detail; and
    3. Answers to Key Questions facing employers in the Kingdom of Saudi Arabia.

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

     

    CONTACTS: Mayer Brown
    Charles Hallab |  Partner  |  challab@mayerbrown.com |  +1 202 263 3023
    Tom Thraya |  Partner  |  tthraya@mayerbrown.com |  +971 4 375 7163
    Jad Taha  |  Partner  |  jtaha@mayerbrown.com |  +971 4 375 7161

     

     

    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:
      • Identify the essential positions within the business, what needs to carry on during an emergency, and what is the minimum number of employees required.
      • Identify employees with transferable skills so that these essential positions can always be temporarily filled.
      • Consider flexible work patterns, such as employees working from home.
      • Identify 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 June 10, 2020

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

    Employers should always ensure that they are complying with the laws and regulations of the Kingdom of Saudi Arabia (“KSA“). More specifically, due to the fast-changing nature of the COVID-19 crisis, governmental ministries, including the Saudi Ministry of Human Resources and Social Development, are frequently issuing binding circulars and regulations to which all employers must adhere and monitor.

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

    The KSA government requires all employers in the KSA to ensure the safety and health of their employees. There is currently no requirement for a formal workplace plan to be in place. However, employers are required to adhere to all circulars and regulations issued by the Saudi government. To the extent an employer needs to put in place an internal plan in order to adhere to such regulations and circulars, the employer can go ahead and prepare such a plan.

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

    A workplace COVID-19 plan should cover the following:

    • Preventive measures, such as enhanced cleaning procedures.
    • Ensuring sufficient supplies of masks, gloves, thermometers, disinfectants, etc. and other required equipment.
    • Communication strategies; i.e., how information will be communicated to employees, suppliers and customers.
    • Where employees will work; i.e., 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 the infection of employees.
    • 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/exposed staff (e.g., pregnant, key employees and employees who travel).
    • How potential visitors to the employer’s offices will be made aware of any health and safety hazards associated with entering the workplace before any scheduled visit.

    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?

    Initially, Saudi Arabia required most of the private sector to enforce remote working and imposed a 24-hour curfew in all major cities across the Kingdom. The 24-hour curfew remains in place across certain cities; however it has been partially lifted elsewhere in the Kingdom, with a limited curfew now in place (depending on the city itself). Some sectors, such as food, healthcare and transportation are exempt. In practice, the majority of employees are still working remotely with very limited number of employees working from their offices considering the strict instructions imposed by the government. Employers should continue to monitor government websites for updated information on remote working and the related procedures.

    In the cities where there are no mandatory government remote working requirements, the employer can still, at the employer’s discretion, request employees to go or stay at home.

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

    Depending upon the circumstances, an employer may require an employee to obtain a clearance from a doctor before being allowed to enter into the workplace.

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

    Based on a governmental circular issued on 6 April, 2020 by the Saudi Ministry of Human Resources and Social Development, for a period of six months, an employer is permitted to give the following three options to employees:

    • Annual leave – employees can take their accrued annual leave.
    • Unpaid leave – employees will also have the option to take unpaid leave.
    • Renegotiating contracts – if the employee rejects the above options, the employer and the employee can consider renegotiating employment contracts with employees; i.e., reduced pay for reduced working hours.

    If the employee rejects the above three options, the employer can terminate the employment of such employee as permitted by Article (74) of the Saudi Labor Law due to force majeure. In this case, the employee will be entitled to full end-of-service benefits calculated up to the date of termination. However, the employer cannot use this termination option where it is accepting any benefit from the government under the newly announced government SANAD program to support private sector Saudi employees. (The employer may apply to the General Organization for Social Insurance (“GOSI“) to cover 60% of its KSA national employees’ salaries up to a maximum of SAR 9,000 per employee through the SANAD program (unemployment benefit program). If the employer has five employees or less, then all of them will be covered; otherwise, up to 70% of the employer’s KSA national workforce may be covered through this initiative. The payments will be made for three months: May, June and July 2020. During this period the employer does not have to top up the employees’ salaries to 100% of what they would normally be. The employee does not have to work during this period when the employee is receiving funds directly from the SANAD program through GOSI).

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

    Unless the Saudi government issues circulars in relation to this issue and subject to what was agreed with the employee in their employment contract, employers may request employees to work from different offices or from certain parts of an office.

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

    Yes, in the current circumstances, reporting suspected cases would be considered mandatory under KSA laws.

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

    Yes, if an employee reasonably fears for their health and safety, they may refuse to attend work. However, if such refusal to attend leads to termination and the employee files a case before the Labor Committee, the presiding judge will consider whether the employee’s fears were reasonable or justifiable and what measures the employer took in relation to the health and safety of the employee.

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

    Yes.

     

    CONTACTS: Mayer Brown
    Charles Hallab |  Partner  |  challab@mayerbrown.com |  +1 202 263 3023
    Tom Thraya |  Partner  |  tthraya@mayerbrown.com |  +971 4 375 7163
    Jad Taha  |  Partner  |  jtaha@mayerbrown.com |  +971 4 375 7161

     

     

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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.
    • 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.

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    For more information relevant to Coronavirus COVID-19, please visit our website.

     

    This publication by Mayer Brown 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.