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    Managing HR Through COVID-19

    A Practical Guide For Multinational Employers

    Prepared by Rajah & Tann

    As at April 22, 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 Rajah & Tann and is published with their kind permission. With thanks to:

    Rajah & Tann  |  Kala Anandarajah  |  kala.anandarajah@rajahtann.com  |  www.rajahtann.com

     

    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 22, 2020

    What are an employer’s main legal obligations?

    The main areas of an employer’s legal liability associated with COVID-19 in the workplace include:

    • Complying with the measures and control orders imposed under the COVID-19 (Temporary Measures) Act 2020 and its subsidiary legislation, in particular, the COVID-19 (Temporary Measures) (Control Order) Regulations 2020 (“COVID-19 Regulations“).
    • Taking, so far as is reasonably practicable, such measures as are necessary to ensure the safety and health of its employees at work (i.e., obligation under the Workplace Safety and Health Act (“WSHA“) and common law duty of care as employer and occupier of the workplace);
      o Complying with obligations under the contract of employment and the Employment Act (“EA“) (e.g., continuing to pay wages, ensuring the employee works within the terms of the contract of employment); and
    • Complying with the various advisories issued by the Ministry of Manpower (“MOM“) on managing the safety of the workplace, managing employees’ travel (including, without limitation, obtaining the relevant regulator’s approval for foreign employees to enter Singapore), stay-home notices and quarantine orders.

    An employer may also wish to review its existing insurance policies, including medical insurance, evacuation cover and business continuity plan.

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

    For the period that the COVID-19 Regulations are in force (currently April 7, 2020, to May 4, 2020, but the Government has announced an extension to June 1, 2020), only employers who provide essential services and have obtained an exemption from the authorities may keep their workplace open. Employers providing non-essential services and/or who have not obtained an exemption must ensure that their workplaces are closed to entry to all personnel, including employees.

    Employers who are permitted to keep their workplace open must ensure that their workplace plan incorporate all of the restrictions under the COVID-19 Regulations, which include prohibition on cross-deployment and safe distancing measures (see question 3 below). The workplace plan must be communicated to all employees and, where relevant, to individuals entering the premises for the purposes of procuring or delivering goods and services.

    Further, under Section 12 of the WSHA, it is the duty of every employer to take such measures as are necessary to ensure the safety and health of its employees at work insofar as is “reasonably practicable”, including providing and maintaining a work environment which is safe, without risk to health, and adequate as regards facilities and arrangement for the welfare of its employees.

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

    Under the COVID-19 Regulations, employers who provide essential services and have obtained an exemption to keep their workplace open must implement a workplace plan with the following parameters:

    • Allow their employees to telecommute unless it is not reasonably practicable to do so. Only where it is not reasonably practicable are employees permitted to attend at the workplace;
    • For employers who provide goods and/or services from two or more locations, they must ensure that their employees are not cross-deployed from more than one location unless the movement of their workers is integral to the provision of those goods (e.g., logistics, transportation);
    • Employers must impose safe distancing measures for their employees including:
      • grouping employees in two or more groups to minimise physical interaction at the workplace;
      • minimising physical interaction between employees as far as is reasonably practicable;
      • ensuring every employee wears a face mask at work at all times unless directed by law for the ascertainment of the employee’s identity, carrying out work that requires no mask be worn or used, or riding a motorcycle in the course of work;
    • Stagger the arrival and departure timings of employees;
    • Employees feeling physical unwell or with the onset of COVID-19 related symptoms are required to report to their employers or such persons appointed by the employers;
    • Ensure there is at least one metre distance between any two employees;
    • Ensure that no meetings in person are held unless the purpose of the meeting is critical to the employer’s business or operations, or for professional or vocation training, testing, certification or accreditation of the employee;
    • Individuals other than employees are only allowed entry into the premises if they are procuring or delivering goods or services connected to the employer’s business and in respect of such individuals, the employer must ensure:
      • that, if there is more than one, their arrival timings are staggered;
      • they do not remain in the premises for longer than necessary for their duties; and
      • they keep a distance of at least one metre away from any other individuals.

    Further, under the COVID-19 Regulations, employers who have been granted exemption to allow access to their workplaces are obliged to, as far as is reasonably practicable:

    • Log the access and the contact particulars of all persons entering its office premises and conduct temperature screening to determine whether each person is a symptomatic case;
    • Refuse entry to any persons whom the occupier knows or has reasons to believe is a symptomatic case and provide the person with a surgical mask. If the person is not able to leave the premises immediately, the person should be isolated;
    • Refuse entry to any person who is under a movement control measure (i.e., a Leave of Absence, Stay Home Notice or Quarantine Order); and
    • Allow natural ventilation of the permitted premises during working hours.

    For general guidance on the contents of a workplace COVID-19 response plan, please see the Appendix, in conjunction with the Action Point Checklist. Note that the employer’s required response will change as the COVID-19 situation evolves.

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

    Yes, employers who provide non-essential services and/or have not obtained an exemption are to direct employees to stay at home and not attend the workplace. Employers who are essential service providers and have obtained an exemption must also direct employees to telecommute unless it is not reasonably practicable to do so. Employers providing essential services who require their employees to telecommute must provide their employees with the facilities necessary for them to work from home. Such facilities may include IT equipment, network access as is necessary for the workers to work from home.

    The employer should also continue to comply with its obligations under the contract of employment. If the employee is not taking annual leave and is expected to work from home, then the employer should not deduct their annual leave and should provide suitable facilities to ensure that the employee is able to work from home.

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

    Employers do not have a statutory right to require an employee to see a doctor. Generally, this requires an express power in the employment contract.  The proper response depends on the circumstances. For example, the employer may have a duty under the WSHA to other employees to require an employee, if they are a suspect case, to obtain clearance from a doctor before the employee is allowed to enter the workplace.

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

    Yes. The contract of employment will continue during a COVID-19 outbreak unless the employment has ceased. An employer cannot refuse to pay wages simply because the employee is unable to attend the workplace or perform any work because of an outbreak.

    That said, employers may consider cost-cutting measures. This includes measures with or without wage adjustments (including putting employees on no-pay leave as a last resort). The Tripartite partners (MOM, National Trades Union Congress, and the Singapore National Employers Federation (“SNEF“)) have updated the Tripartite Advisory on Managing Excess Manpower and Responsible Retrenchment, which deals with some of these matters and sets out guidelines for how to implement them. Amongst other things, these cost-saving measures are subject to obtaining the employees’ express consent and, if unionized, the union’s consent. Employers registered in Singapore with ten or more employees are also required to notify the MOM upon the implementing of cost-cutting measures which would impact the employees’ salaries, amongst other requirements.

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

    Yes, employers are permitted to require staff to work in certain parts of an office, provided always that they are doing so to manage workplace safety and they comply with the measures stated in COVID-19 Regulations and the MOM’s Workplace Measures Advisory. This includes ensuring there is at least clear physical spacing of 1 meter between employees at all times (see question 3 above).

    Employers are not permitted to send employees to a different office unless they are an essential service or goods provider and the movement of its essential service workers is integral to the provision of those goods or services under the COVID-19 Regulations.

    Employers who are permitted to send their employee to a different office must ensure they are not prevented from doing so under the terms of the employment agreement and to consult the employee if the new office is located a distance away from the previous office.

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

    Yes, employers can direct employees to report suspect cases of COVID-19. Practically, employers should ensure that such reporting channels are handled sensitively. Questions such as whether anonymity must be ensured, whether a response must be provided to the reporting employee, and timelines for dealing with the reports must be considered, failing which, legal and practical issues can potentially arise.

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

    Employees working for an employer who is not an essential service provider and/or has not obtained an exemption to allow access to its premises may lawfully refuse to attend work. In addition, any persons under a movement control order (i.e., Leave of Absence, Stay-Home Notice, Quarantined Order), medical certificate issued by a registered medical practitioner or directed by the Government may refuse to attend work.

    The MOM has advised employers to be flexible during this period and permit employees to telecommute if possible.

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

    Yes. The temperature screening of all persons must be conducted before allowing them entry to office premises is permitted.

    Employers must also conduct visitor logging to facilitate contact tracing. Recording personal data without consent during this period is permissible, as it is considered to be necessary to respond to an emergency that threatens the life, health or safety of the individual or another individual under one of the exceptions in the Personal Data Protection Act 2012.

     

    CONTACT:  Rajah & Tann  |  Kala Anandarajah  |  kala.anandarajah@rajahtann.com  |  www.rajahtann.com

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    Appendix: Workplace COVID-19 Response Plan

    A plan should deal with the following:

    During the period where the COVID-19 Regulations are in force (currently April 7, 2020 to  May 4, 2020 but the Government has announced an extension to June 1, 2020)

    • Allow access to the workplace only if the employer is an essential service provider and has obtained exemption from the authorities.
    • For non-essential service providers, ensure employees do not attend the workplace and telecommute from home instead.
    • For essential service providers, ensure employees do not attend the workplace and telecommute from home instead unless it is not reasonably practicable.
    • Impose safe distancing measures.
    • Minimize physical interaction.
    • Grouping employees into two or more groups to minimize interaction.
    • Ensure employees wear a face mask unless not possible due to nature of work or riding motorcycle.
    • Stagger arrival and departure timings for employees attending the workplace.
    • Ensure that there no physical meetings unless critical for work or training.
    • Log access of all workers.
    • Conduct temperature screening.
    • Refuse entry to all symptomatic persons.
    • Allow natural ventilation during working hours.

    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 Rajah & Tann 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.