Managing HR Through COVID-19
A Practical Guide For Multinational Employers
Prepared by Kim & Chang
As at April 17, 2020
This guide will help employers manage HR legal and practical issues arising from COVID-19.
- Good Practice Guidance giving high-level consideration;
- An Action Point Checklist drilling down into the detail; and
- Answers to Key Questions facing employers in South Korea.
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 Kim & Chang and is published with their kind permission. With thanks to:
Kim & Chang | Hoin Lee | firstname.lastname@example.org | www.kimchang.com/en
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.
- 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).
- 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”.
- 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?
- 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.
As at April 17, 2020
1. 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:
- Immediately reporting to the local health center when an employer detects a person suspected to be infected (Article 12(1) of Infectious Disease Control and Prevention Act (the “IDCPA“)); and
- Prohibiting an employee who has contracted an infectious disease from working. Violation is subject to a fine of up to KRW 10 million (Articles 138(1) and 171 of the Occupational Safety and Health Act (“OSHA“), Article 220(1) of the Enforcement Regulations of OSHA).
2. Do I need to prepare for and have in place a workplace plan to deal with COVID-19?
Yes. An employer must take disinfection measures or other necessary measures when there is a confirmed or suspected case (Article 50(1) of IDCPA).
The Ministry of Employment and Labor (the “MOEL“) recommends that businesses designate a team or employee dedicated to sustaining business operations to prevent the outbreak or spread of COVID-19. Subcontracted companies should be covered by the plan (The MOEL Response Guidance for Businesses to Prevent and Control the Spread of COVID-19 issued on April 6, 2020).
3. What should a workplace COVID-19 response plan cover?
The Ministry of Trade, Industry and Energy (the “MOTIE“) and the MOEL issued the standard business continuity plan in relation to the COVID-19 outbreak and recommended the below measures for employers (The MOTIE Guidance for Business Continuity Planning on April 13, 2020):
- Identify the current status of the main workforce and the skills to continue the major business in the event of confirmed cases;
- Prepare a special plan to manage the workers with symptoms in the event of confirmed cases;
- Develop and self-check the business continuity plan to be prepared for emergency situations. The plan must cover the subcontracted, dispatched and contracted employees who work in the same workplace; and
- Prepare a business plan to respond to a large number of workers on leave.
4. Can I direct my employees to go home or stay at home if there is an outbreak?
First, an employer may arrange for employees to work from home to prevent the spread of virus. The employer may also provide paid leave.
In addition, if the employer wishes to prohibit an employee from coming to the workplace because it is suspected that the employee has contracted COVID-19, and there is a reasonable risk of infecting other employees, the employer may consider temporary “business suspension” which requires a justifiable reason. Whether there is a justifiable reason is determined based on a comparison between the necessity of the business suspension and the disadvantage suffered by the employees due to the business suspension. For example, if there is serious disruption in the market which leads to the company having to shut down all or part of its production, the employees in the shut-down portion of the production line can be sent home and receive 70% of their average wage. If an employee is placed on business suspension, the employer must pay the employee a business suspension allowance of at least 70% of their average wage pursuant to Article 46 of the Labor Standard Act.
Considering the current status and risk level of COVID-19, the courts are likely to recognize the business necessity for suspension of work of a certain employee. In addition, as the allowance for business suspension will be paid, we believe that the court will likely find that the disadvantages are to the level acceptable by the affected employee and thus justifiable.
Such measure is also in line with the MOTIE’s recommendation to restrict employees or visitors with symptoms of infectious diseases from visiting the workplace (the MOTIE’s Standard Business Continuity Plan).
However, if an employee is hospitalized or isolated by the health authority in accordance with Article 41-2 of the IDCPA and thus is not able to report to work, the company is not legally obligated to provide the employee with any paid leave or business suspension allowance and an employee that has not received such paid leave or business suspension allowance from the company can apply for a subsidy from the government. However, if the company has provided paid leave to the employee, the employee will not be eligible for the living expense allowance provided by the government; in that situation, however, the company can apply for a government subsidy of paid leave allowance.
5. Can I direct an employee to see a doctor?
Yes. The MOEL recommends that employers immediately report to the public health centre or call the KCDC (Korea Centers for Disease Control & Prevention) Call Centre at 1345 when there are suspected or confirmed cases or persons with symptoms. If there are employees designated by the health authority to self-isolate, the MOEL also recommends that such employees do not go to work and follow the health authority’s instruction to go to a hospital or self-isolate at home.
6. Do I have to continue to pay wages and provide other employment-related entitlements during a COVID-19 outbreak?
An employer must pay a business suspension allowance if it decides to temporarily suspend the business, as explained above. In addition, for employees working from home, the employer must pay the wage in full. However, the employer is not legally obligated to pay the wage or any allowance to an employee who is hospitalized or isolated by the health authority in accordance with Article 41-2 of the IDCPA. Please see our response to question 4 above.
7. Can I quarantine certain staff to certain parts of an office or send them to a different office?
When there are confirmed or suspected cases or employees with similar symptoms, the MOEL’s recommendation is to have them to wear personal protective equipment (e.g., mask, disposable gloves, etc.) and move them to the isolation areas. If there is anyone who has been in contact with the above employees, the MOEL also recommends that such person wait for medical staff from the public health system in an isolation area while wearing personal protective equipment. It should be noted that this is a recommendation to prevent the spread of the virus in the workplace and the employer should be careful not to infringe an employee’s human rights when taking these measures.
8. Can I direct my employees to report suspected cases of COVID-19?
Information about the suspected patient is personal information which may be collected only after obtaining the data subject’s consent in accordance with the Personal Information Protection Act. Therefore, while it is possible for an employer to encourage employees to report if they are classified as suspected cases, the employer cannot force the employees’ report without consent.
9. Can an employee lawfully refuse to attend work if there is a COVID-19 outbreak?
Yes. As explained in our response to question 1 above, the OHSA requires an employer to prohibit an employee who has contracted an infectious disease from working. An employer who fails to comply with the above requirement may be subject to a fine of up to KRW 10 million.
In addition, under the IDCPA, the Ministry of Health and Welfare (the “MOHW“) and the local government may require suspected cases to self-isolate for a certain period or receive medical treatment at their home or infectious disease control facilities. A person who fails to comply with the above order may be subject to a fine of up to KRW 3 million. Therefore, where an employee receives the isolation and treatment order from the MOHW or the local government and requests self-isolation or medical leave from the employer, but the company requires the employee to continue to work so that the employee cannot comply with the isolation and treatment order, the company may be subject to criminal sanction. Therefore, the company must ensure a suspected case self-isolates if that employee has been subject to self-isolation by the authority.
10. Can I screen employees and customers before allowing them to enter the workplace?
Measures, such as using a thermal imaging camera, to detect employees with a risk of infection by COVID-19 and to prohibit entry of such employees to prevent the inflow and spread of the virus in the workplace would be viewed as necessary measures to prevent infectious diseases permitted under the IDCPA. In practice, there are many corporations and public institutions in Korea which have installed thermal imaging cameras at the entrance to screen employees and visitors.
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Appendix: Workplace COVID-19 Response Plan
A plan should deal with the following:
BEFORE AN OUTBREAK
- Implementing preventive measures.
- Displaying leaflets or posters to promote personal hygiene rules (including washing hands and cough etiquette) at the places used by many people, such as entrances, shower rooms, and restrooms.
- Promoting the importance of personal hygiene through various communication channels, such as brochures, newsletters, and emails.
- 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.
- Adopting methods to reduce personal contact, such as video/audio conference and working from home.
- If employees are required to travel to areas known to have the virus, reviewing whether such travel is necessary.
- To reduce damages arising from a large number of workers requiring leave due to personal infection, infection of a family member and the need to take care of children due to school closures , identifying the relevant information for the workers and preparing an emergency plan.
- To minimize the impact on the business due to the absence of workers, preparing a work plan which may include a back-up team, designation of an alternative workplace, flexible working hours, and remote working.
DURING AN OUTBREAK
- Identifying risks of employees becoming infected and implementing measures 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.
- Identifying the major skills required to continue the business.
- Designating an employee responsible for implementation of the business continuity plan upon occurrence of a confirmed case.
- Checking whether the system can operate without the responsible worker present.
- Designating where employees will work, e.g., home, in the office or in alternative temporary offices.
- Determining at what stage the workplace will be closed and who will decide that.
- Restricting workers or visitors with symptoms from coming to the workplace.
- Taking necessary measures upon occurrence of confirmed or suspected cases or persons with similar symptoms.
- Developing a plan to maintain communication with the relevant stakeholders, such as the health authorities, business partners (e.g., service/product suppliers), and major customers.
AFTER AN OUTBREAK
- Ensuring that employees and customers have fully recovered before they are allowed back to 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 the outbreak. Therefore, depending on the circumstances, employers may wish to:
- Prepare a communication strategy within the company to properly respond to an increased absence rate and rumors.
- Provide training to employees about the virus.
- Discuss with staff the possibility of a workplace closure prior to closing.
- Allow employees to work from home.
- Provide paid medical leave or special leave.
- Consider temporary business suspension to prevent infection.
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.