KAMPALA – It is no news that COVID-19 has rapidly spread across the world with the World Health Organization reporting more than 130,885 deaths globally. In these unprecedented times, how you protect yourself and your business from the legal implication of a virus with no vaccine should be a priority.
The total cost of the Pandemic on the global economy is currently estimated by the UN trade and development agency to be at $1 trillion. The devastating effect of the coronavirus can be seen on the global aviation industry where IATA is predicts that about 25 million jobs could be at risk. Alexandre de Juniac in his remarks at the IATA media briefing on Covid19 of 14th April 2020 states that “If airlines lose one job another 24 disappear somewhere in the value chain.
In Uganda, the Pandemic has caused the government to order a countrywide lockdown and although no study has been done on the economic impact of this action, many businesses are set to shed off jobs as their incomes reduce. As businesses prepare for the post Covid19 era, CEOs and entrepreneurs must minimize exposure to litigation by observing and taking deliberate actions to comply with the law as they restructure their business and operations.
There is no doubt that Covid19 related litigation will soon be common place around the world. The first concluded case in the African continent, was the south African case of exparte Van Heerden decided on 27th March 2020 where the applicant and approached the High court of South Africa on an urgent basis for an order that he be exempted from travelling restrictions to allow him bury his grandfather in another part of the country. The presiding judge dismissed the application stating that authorizing the applicant to travel would be to break the lockdown regulations which apply to everyone within the o country and in addition no matter how careful and diligent the applicant would conduct himself, he could expose others to unnecessary risk. Many such cases could be filed both against the government and private businesses.
The Ministry of Gender, Labour and Social Development on the 20th March 2020 issued guidelines that are instructive on employer/ employee relationships and how to keep workplaces safe in the context of Covid19.
The ministry encourages retention of employees who are on monthly pay, since termination at this stage may become costly in terms of payment of terminal benefits. However, majority of employers in the private sector in Ugandan are in the informal and SME sectors which largely depend on daily incomes to sustain their operations. These businesses may find it very difficult to sustain their operations without income for over a month. Such businesses will, be forced to cut costs in order to survive and laying off employees maybe one of the cost-cutting measures to take. In the end, the decision on whether to retain employees or not is a business decision that individual CEOs and business owners will have to take. If a business decides to terminate their employee contracts, then it must do so within the confines of the law. The Employment Act and individual employment contracts will normally provide for how individual Employments are to be terminated. Employers must adhere to these provisions in case of termination. Special attention must be given to payment of terminal benefits which may include payments in lieu of notice, severance packages, accrued leave, and gratuity if any. In case the employer is laying off over 10 employees within a three months period, then they must do so while complying with the section 81 of the Employment Act which requires such an employer to notify the commissioner at the the ministry of Labor in writing giving reasons for the termination, the number and categories of workers likely to be affected and the period over which the termination is likely to be carried out. In case of unionized workers, the employer should review the provisions of any existing collective bargaining agreements before terminating employment contracts. Employers may also choose not to renew existing contracts that are coming to an end.
The ministry of labour further guided that employers should provide training of workers on preventive measures for Covid19, provide protective equipment and treatment of affected workers. Employers have a statutory obligation to ensure that their workplaces are safe and to take every precaution necessary for the protection of their employees. In the context of Covid19, every employer must ensure that employees have protective gear, can travel safely to and from their places of employment and are given training and guidelines on how to execute their assignments.
There is a possibility that employees who contract Covid19 in the course of their employment in will sue their employers if such employers have not taken reasonable measures to maintain a safe and healthy workplace. It is important to note that information about transmission of Covid19 is evolving day by day and employers must keenly follow guidelines that are being issued by the ministry of health, WHO, Center for Disease Control and the Infectious Diseases institute among others.
Employers in industries such as banking, hospitality, media and health sectors where employees are exposed to a higher risk of contracting of Covid19 should review their insurance covers to ensure that their employers are covered under the different policies or change to insurance companies that are willing to cover their employees against Covid19. Employers should also think about the extent of their insurance covers where an employee is working from home.
Where an employer wishes to retain employees at work during the lockdown period, the employer should educate them about the dangers posed to their health by their continued presence at the workplace. In other words, the employer should obtain the informed consent of their employees in continuation of work. Should an employee contract Covid19 in the course of employment, it should be the responsibility of the employer to ensure that such an employee is treated. The employer also has the obligation to immediately notify the ministry of health about such occurrence.
Where an employee or independent contractor refuses to work, because of fear of exposure to Covid19, the employer should immediately investigate this through an interview. The employee should then be notified, in writing, of measures that will be taken to mitigate chances of contracting the virus by the employee, if they choose to return to work. Such measures must be informed by the ministry of health, WHO and CDC best practices and guidelines.
If the said employee falls under the category that is prone to contracting the virus, for example, the elderly, pregnant women, and those with pre-existing health conditions, then the employer must not force them to work in an environment that can have them easily contract the virus neither should they unlawfully terminate their contracts as this could expose the employer to adverse litigation.
In the event that the employers would wish to retain all company employees, then they could explore a number of options like negotiated suspensions of the contracts for a defined period and taking of statutory leave.
In all, employers must recognize that Covid19 has created a situation where contracts may be frustrated and therefore necessitating termination, however, such terminations must be done lawfully. Where an employee doubts the legality of their actions, they should consult a lawyer for guidance and professional advice.
The author is a partner at Onyango & Company Advocates.