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    Managing HR Through COVID-19

    A Practical Guide For Multinational Employers

    Prepared by MdME

    As at April 16, 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 MdME and is published with their kind permission.  With thanks to:

    MdME  |  Helena Kok  |  helenakok@mdme.com.mo  |  www.mdme.com.mo/en

     

    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 16, 2020

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

    Under Macau Labor Relations Law (the “Labor Law“), employers must provide good conditions of hygiene and safety in the workplace. The Regulations of Occupational Safety and Hygiene for industrial, commercial and construction workplaces set out specific workplace safety and hygiene requirements which employers must follow at all times, whether during the COVID-19 outbreak or not. Apart from these statutes, employers must also follow directives issued by the Macau Labor Affairs Bureau to employers during periodic inspections of workplaces. These requirements and directives include, but are not limited to, daily cleaning of the workplace, provision of hand soap in washrooms, and sufficient ventilation.

    During COVID-19, unless otherwise agreed between the employer and employee, employers continue to be bound by legal and contractual obligations relating to the payment of basic salary, work injury compensation and other entitlements.

    During the COVID-19 outbreak, the Macau Health Bureau has issued guidelines to employers/business owners of several industries, such as hotels and casinos, outlining recommendation and measures to take for the prevention of the spread of COVID-19 within commercial outlets and workplaces. While these guidelines are not legally mandatory, it is advisable for employers to follow through, as failure to do so may backfire on the reputation of employers in the unfortunate event of having an infected person in the workplace. In some regulated industries, the respective regulators are treating these guidelines as mandatory.

    In combating COVID-19, certain temporary and urgent measures have been imposed by the Macau government under the Law of Prevention, Control and Treatment of Contagious Disease (“Law of Contagious Disease“). These measures are mandatory and applicable to the general public. However, employers should be aware that some of these measures also reflect their legal obligations as employers. For example, when the Macau government directs certain employees to be quarantined at home, employers must not require such employees to report for duty.

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

    There is no legal obligation in Macau for employers to have a workplace plan but, as good corporate practice, employers should have one, either as a standalone policy or as part of crisis management policies.

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

    Employer should be guided by the technical guidelines issued by Macau Health Bureau. Macau Health Bureau constantly updates these recommendations to reflect the latest developments of the COVID-19 pandemic. Employer should keep abreast of them and implement necessary changes to the plan.

    For general guidance on the contents of a workplace COVID-19 response plan, please see 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, subject to reasonable justification and no deduction of salary. Reasonable justification means it is not discriminatory and is done to protect the safety and health of the workplace and employees. Under the Labor Law, both employer and employee must comply strictly with laws, regulations and directives issued by regulators in relation to safety and hygiene. If it is apparent that maintaining certain employee(s) in the workplace will very likely jeopardize the health of other employees, the employer has an obligation to direct them to go home and employees have an obligation to comply. In any case, if it is not a government-imposed direction, employees should not suffer any pay deduction.

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

    Yes. The technical guidelines of Macau Health Bureau issued to some industries recommend that an employer should direct employees to see a doctor if they have COVID-19 symptoms. If employers believe that a particular employee’s health status may jeopardize the safety of the workplace, they should direct the employee to see a doctor. To avoid issues arising from the employee refusing this direction, the employer should fully explain the rationale of the direction to the employee. Employers should issue an internal policy outlining the circumstances in which the employer may request employees to see a doctor, such as where they have COVID-19 symptoms or have close contact with an infected person. If the employee concerned refuses to follow this direction, the employee should not be allowed to attend the workplace until the risk of infection is cleared. As a responsible employer, the employer should continue to track the health status of the relevant employee, even if the employee is not in the workplace.

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

    Yes, unless it is otherwise agreed between the parties. If an employee cannot attend work due to a government-imposed quarantine, this can be treated as a justifiable absence under the Labor Law, and such absence is unpaid.

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

    Yes, if it is believed that such employees will very likely put other employees and the workplace at risk, e.g., having travelled to high risk countries. The arrangement must be temporary and employer shall reinstate the employee’s status as soon as the uncertainty ceases to exist.

    If the employees are non-local employees, the Law of Non Resident Worker Hiring applies. Under this law, non-local employees must not perform job duties or be assigned in a work location that are different from those previously approved by the Macau Labor Affairs Bureau when granting the work permit. Any exceptional case should be brought forward to the Macau Labor Affairs Bureau for approval.

    Lastly, under section 26 of the Law of Contagious Disease, no one should be discriminated against for having been infected or for being suspected, or at risk, of being infected. Special arrangements that are applicable to individual employees without sound justification are likely to be construed as discrimination. The justification should be objectively convincing; it should not merely be based on the employer’s personal fear. Employers should not unilaterally impose the decision but, instead, should try to obtain the employees’ understanding and explain to them the possible consequences if they do not collaborate.

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

    The Law of Contagious Disease does not provide for any obligation on the general public to report suspected cases to the Health Bureau, nor has the Macau government asked Macau citizens to report COVID-19 cases ever since its outbreak started. Detecting suspected cases and preventing spread of contagious disease is primarily the responsibility of the government. Likewise, employers should be responsible for providing a safe and healthy workplace for staff. There is no legal ground that makes it mandatory for employees to report suspected cases. Nevertheless, employers should provide appropriate channels for employees to report suspected cases if they find themselves around suspected cases of COVID-19 and feel uneasy. Employers should then follow through once suspected cases are reported.

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

    It depends. Section 50 of the Labor Law lists 12 circumstances in which an absence is considered justifiable. Any other circumstances not listed in this provision are considered unjustifiable. Prolonged unjustifiable absence will lead to dismissal. None of the 12 justifiable circumstances should apply to employees’ refusal to report for duty, unless the employer has failed to implement preventive measures, say, barring entry of persons suffering symptoms of COVID-19, rolling out alternative working from home arrangements, providing masks to employees, replacing in-person conferences with teleconferences, etc.. In this situation, an employee’s absence should constitute a justifiable absence due to the fact it is not attributable to the employee or force majeure. Otherwise, the employer may consider the absence unjustifiable.

    Nevertheless, for the sake of a harmonious employment relationship, the employer should exercise flexibility and respect individual concerns, by agreeing a non-pay leave period or asking employees to use up annual leave as a first resort, before treating the leave as an unjustifiable absence.

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

    In Macau (as explained in question 1), the Macau Health Bureau has been issuing COVID-19 technical guidelines for different industries and the general public to follow. Screening is among these recommendations. In some regulated industries, it is mandatory to screen employees and customers at the entry point.

    CONTACT: MdME  |  Helena Kok  |  helenakok@mdme.com.mo  |  www.mdme.com.mo/en

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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, 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 MdME 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.