Managing HR Through COVID-19
A Practical Guide For Multinational Employers
Prepared by Lee, Tsai & Partners
As as April 10, 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 Taiwan.
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 Lee, Tsai & Partners and is published with their kind permission. With thanks to:
Lee, Tsai & Partners | Dr. Chung-Teh Lee | firstname.lastname@example.org | www.leetsai.com
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, 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 10, 2020
1. What are an employer’s main legal obligations?
The main areas of an employer’s legal liability associated with COVID-19 include:
- Complying with obligations under the “Special Regulations on the Prevention of Serious Infectious Pneumonia and the Provision of Relief Stimulus” (“COVID-19 Regulations“). This includes providing quarantine leave to all those that the health and safety authorities have ordered to be quarantined individually at home, monitored at home, quarantined as a group or monitored as a group, as well as those that must care for individuals who are under quarantine that are unable to take care of themselves. Workers required to take such quarantine leave may ask the employer to continue paying wages during this period if it is attributable to work.
- Complying with obligations under the “Occupational Health and Safety Guidelines in Response to COVID-19” (“Occupational Safety Guidelines“), which include taking the necessary measures given the current state of the pandemic and the needs of the employees, such as not prohibiting workers from wearing masks, preparing body temperature measurement and screening devices, increasing workspace cleanup efforts, etc.
- Complying with obligations under the “Guidelines for Continued Operations by Businesses in Response to COVID-19” (“Continued Operations Guidelines“), which include designating specific personnel responsible for disease prevention, setting up a disease prevention response team, and establishing plans for continued business operations.
- Complying with the Infectious Disease Prevention Act, which includes expropriation of private buildings, equipment and other previously declared disease prevention goods, access by disease prevention personnel into private spaces for disease prevention work, prohibition of discrimination against infected or quarantined workers, etc.
- Complying with the Occupational Safety and Health Act, which includes the general obligation on the employer to provide a safe and appropriate work environment for its employees and install appropriate safety equipment or measures to prevent occupational hazards.
- Complying with the Labor Standards Act, the Act for Gender Equality in Employment and the Act Governing Leave-Taking by Employees, which include providing sick leave for workers infected by COVID-19 in the course of work, providing compensation for death or injury suffered by the worker as a result; if the worker became infected for reasons not attributable to work, the quarantine period should come out of ordinary sick leave, annual leave or personal leave. Workers taking care of family members undergoing self-quarantine and requiring the worker’s care shall be granted family care leave, personal leave or annual leave.
- Complying with obligations under the employment contract, such as continuing to pay wages for workers who are not being quarantined.
- Complying with the Social Distancing Policies announced by the Central Epidemic Command Center, which provide that people shall stay at least 1.5 meters away from each other indoors and at least 1 meter away outdoors, but if both are wearing masks, the aforementioned distancing suggestions may be exempted. For businesses where close contact is relatively frequent and there is no effective way to keep people at least 1.5 meters away from each other, they are advised to proactively consider suspending business operations. For office spaces, employers should consider implementing screens or other indoor partitioning measures to help employees keep a safe distance; if a meeting is required, the attendees should refrain from eating, and drinks should be sealed with caps to prevent infections through aerosol or bodily fluids.
The latest news regarding who needs to be home quarantined, the standards for such determination and other updates may be found at https://www.cdc.gov.tw/Category/NewsPage/EmXemht4IT-IRAPrAnyG9A
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 Taiwan on an employer to specifically have a workplace COVID-19 response plan. However, as Article 23 of the Occupational Safety and Health Act requires, an employer needs to regularly have a plan to manage safety and health in the workplace and have designated personnel to be responsible for occupational safety. In this regard, the safety and health plan covers matters such as management of personal protection equipment and emergency response procedures (Please refer to Article 31 of the Enforcement Rules of the Occupational Safety and Health Act).
3. What should a workplace COVID-19 response plan cover?
In addition to the above, based on the Occupational Safety and Health Act, the Taiwan Center for Disease Control (“CDC“) has promulgated the aforementioned Continued Operations Guidelines, which contain suggested measures for businesses to take based on the current state of the pandemic. This includes staying updated on new developments, sharing knowledge about disease prevention measures, preparing resources, monitoring the health of personnel, reporting cases of infections and other preparations in relation to disease prevention.
4. Can I direct my employees to go home or stay at home if there is an outbreak?
Yes, but it depends. In principle, under Article 12 of the Infectious Disease Prevention Act, an employer cannot refuse to provide work to or engage in any other discriminatory conduct against employees who are sick or who are suspected of being infected. However, under the aforementioned Continued Operation Guidelines, the employer should encourage employees who are coming down with a fever or other respiratory symptoms to rest at home. The employer may request the employee to stay away from the workplace if the health authority has assessed the employee as high-risk of infection; if any of the employees become confirmed cases, the employer must cooperate with the health authorities and evaluate how many co-workers may be exposed at the workplace and require them to submit to home quarantine based on the results of such evaluation.
5. Can I direct an employee to see a doctor?
Yes, but it also depends on the situation. Per the above, while discriminatory conduct is in general prohibited, current guidelines would require the employer to assist in getting an employee who is coming down with a fever or other respiratory symptoms to nearby hospitals. Employers are also being advised to set up a temporary rule to request that employees with the above symptoms not come to work and seek medical help as soon as possible.
6. Do I have to continue to pay wages and provide other employment-related entitlements during a COVID-19 outbreak?
Yes. Unless otherwise agreed between the employer and the employee, or for quarantine leave mandated under the COVID-19 Regulations, the standard rule under Article 22 of the Labor Standards Act requires employers to pay full wages per the terms of employment; employers may not unilaterally pay reduced wages or other compensation purely because of the pandemic. Violators may be fined NT$20,000 to NT$1,000,000 under Article 79 of the Labor Standards Act.
7. Can I quarantine certain staff to certain parts of an office or send them to a different office?
Yes, but employers must comply with all the requirements under Article 10-1 of the Labor Standards Act in relation to moving an employee to a different work location – i.e., such a move is required for the employer’s business operations, the terms of employment remain unaffected, the employee and their family’s living conditions must be taken into account in the move and assistance shall be provided if the location is very far away.
Many companies have since enacted policies for working remotely from home since the outbreak, and the Continued Operations Guidelines expressly recommend that employers consider working at different sites or remotely to cut down the risk of infection.
8. Can I direct my employees to report suspected cases of COVID-19?
Yes. With COVID-19 being officially recognized on January 15, 2020 as an infectious disease under the Infectious Disease Prevention Act, both the employee and the employer have a duty to report suspected cases, so employees may be instructed to report suspected cases of COVID-19 in the workplace to the employer.
9. Can an employee lawfully refuse to attend work if there is a COVID-19 outbreak?
Yes. Under Article 14, Paragraph 1, Subparagraph 4 of the Labor Standards Act, if the employer or other co-workers are infected with a recognized infectious disease which may be spread to others and seriously harm their health, the employee may terminate the employment agreement without notice and request severance. The employee may also refuse to be dispatched to work in locations with infectious disease outbreaks if the employer fails to provide the necessary protective equipment; if the employer nevertheless compels the employee to go, the employee may terminate the employment agreement immediately and request severance. For COVID-19, the COVID-19 Regulations, as mentioned, require the employer to give quarantine leave without any discriminatory or unfavorable treatment to employees or family members of employees unable to take care of themselves who are ordered to undergo home quarantine or monitoring. The employee may refuse to work if the employer fails to comply with the above.
10. Can I screen employees and customers before allowing them to enter the workplace?
Yes. As mentioned, the employer may enact necessary screening measures for workplace safety and health purposes. According to Article 6 of the Occupational Safety and Health Act, employers are required by default to provide the necessary sanitation equipment and measures to prevent harm caused by pathogens. In addition, the aforementioned Occupational Safety Guidelines and Continued Operation Guidelines also contain provisions requiring employers to set up body temperature measurement devices and other monitoring or screening measures to prevent infection at the workplace.
CONTACT: Lee, Tsai & Partners | Dr. Chung-Teh Lee | email@example.com | www.leetsai.com
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.