As Covid19 continue to spread around the world, we know that organisations are facing significant challenges and need to respond rapidly. Right now HR Professionals has so much to deal with from activating pandemic crisis response plan to maneuvering business continuity plan to address current situation, most importantly finding mutually agreeable ground for team members and the organization. MAHRP with its partners making effort to ensure our members get timely information. We would like to thank S&A Lawyers for their contribution.
Special Message from MAHRP President
MAHRP and its partners has released various resources that can be useful to get necessary information to tackle challenges faced by HR Professionals at the time of crisis. You may download using the below link
– Awareness poster pack
– Legal Information by S&A Lawyers
– ILO Standards and Covid19
– ILO Covid19 Occupation, Health and Safety Checklist
– Family Friendly Workplace Guideline Covid19 by ILO & UNICEF
– ILO Monitor 2nd-edition COVID19
– MAHRP Workplace friendly posters
– Getting your workplace ready for COVID19
– Emergency Response in Organization
Health and Safety in the Workplace
Is there an obligation on the employer to protect the employee?
An employer is under an obligation to implement necessary measures for the safety and protection of the employees at the work place without charging any fee from the employees1. In the current situation with COVID-19, the employer owes a statutory duty to provide the necessary tools – including protective wear to ensure the safety of the employees that are at high-risk. Furthermore, there is an obligation to provide adequate education and training to employees on the use of the protective gear and the manner in which the employee can remain safe at the workplace. Given the vast number of news that is being circulated regarding the COVID-19 , it is important for the employer to circulate correct information in particular relating to better understanding of who is considered within the ‘high risk’ and the manner in which the employee can take precautionary steps to ensure the safety at the workplace.
Are employees obliged to disclose themselves as a “risk-factor” to the employer?
The “risk-factors” include both individuals that may be at a higher risk of being infected due to their personal medical or physical conditions and those that may potentially carry the virus whereby being of a “high-risk” to the employer, e.g. those that have had contact with a confirmed case, or may have visited a high risk area. World Health Organisation has identified two groups of people who are at a higher risk of getting severe COVID-19 disease – namely, people over the age of 60 years and those with underlying medical conditions (such as cardiovascular disease, diabetes, chronic respiratory disease and cancer). The Employment Act imposes an obligation on the employees to assist the employer in maintaining a safe work environment2. As such, in all these circumstances where an employee may be identified as high-risk, the employee has a duty to assist the employer in taking the necessary reasonable precautions to protect the health and safety of the workplace. Therefore, we are of the opinion that an employee is under an express and implied duty to disclose themselves as a risk-factor.
Can the employer demand employees to disclose themselves as being a “risk-factor”?
Under the employee’s statutory obligation to assist the employer in maintaining a safe work environment, it is reasonable to assume that the employee owes a duty of care to the employer and is under an obligation to disclose themselves as being a “risk-factor”. Furthermore, the requirement to disclose the information would not be in contravention with the non-discrimination clause of Employment Act.
As a general management practice, it is important to remind the employees of their obligation to disclose such information and the employer shall maintain confidentiality of the disclosed information in accordance with the laws and regulations in the Maldives. In the event the employee does not provide the requested information, it may be considered as a direct violation of the employer’s efforts to provide a safe working environment and the employer at its discretion may impose reasonable disciplinary action in accordance with the relevant laws.
Can the employer issue an instruction (or a policy) requiring employees to report co-workers with flu symptoms (i.e. fever, cough, difficulty breathing, pains in the muscles, tiredness) to the employer?
Under normal circumstances where the flu symptoms may not necessarily be considered a ‘threat’ to the safety of workplace, it may not be reasonable to assume that the employer should instruct employees to report in the event their colleague(s) demonstrate flu symptoms. However, considering the World Health Organisation (WHO) has characterized COVID-19 as a pandemic3 and the Maldivian Government has imposed, for the first time in its history, a State of Medical Emergency4, it may be considered reasonable to instruct employees to report co-workers or other persons that the employee may be in contact with that demonstrates symptoms of COVID-19.
It should be noted that the general obligation to report any suspected cases of COVID-19 to the Health Protection Authority (the “HPA”) in accordance with the Public Health Act5 is mandatory on every person within the jurisdiction, including any corporations. This obligation is separate from the fiduciary responsibility between an employer and employee, and as such, employers should remind employees to communicate any suspected cases to the employer as well in order to ensure complete transparency and continued efforts to provide a safe working environment.
Does the employer have the obligation to report infections occurring in the business to the health authorities?The Public Health Act imposes an obligation on all residents to report any suspected contagious illnesses as may be defined by HPA. COVID-19 has been classified as a contagious illness and therefore the employer is under an obligation to report all suspected cases to the Director General of HPA (or any other person as may be instructed by the Director General).
Can employees refuse to come to work?
The employee has the right to abstain from work if there are reasonable grounds to believe that the work place is a serious hazard to the health and safety of the employee6. However, if the employer provides the reasonable and adequate support to safeguard against the assumed health and safety hazards, the is no valid legal reason the employee can refuse to come to work. In the event, the employee is at ‘high risk’ of getting COVID-19, the employer should, in good faith, consider the concerns of the employee and provide adequate support and explore all reasonable efforts to address the concerns of the particular employee, where possible.
If the schools are being closed and employees need to stay home and cannot work, does the employer need to pay them and – if so – for how long?
The employee is entitled to 10 days of paid leave to take care of emergency family responsibilities 7. While the Act does give illness amongst a family member as an example of such an emergency family responsibility, under these circumstance, the employer may at its discretion consider the request for emergency family responsibility leave. Alternatively, any other agreed terms – e.g. annual paid leave, working from home, part-time work arrangements – can be negotiated in good faith and agreed between the parties.
Can employers require employees to take paid annual leave from work?
The Employment Act entitles the employees to 30 days of paid annual leave upon completion of 12 months of service. The Employment Act allows the employer the authority to decide on the date of commencement of annual leave after discussing the matter with the relevant employee8. Therefore, as long as the employer can demonstrate that the matter has been discussed with the employee and provides adequate justification for placing the employee on annual leave, the period of leave would be binding on both the employer and employee.
Similarly, the employer, at it’s discretion may require their employees working in the resorts / liveaboards to take the accrued “days off” at the employer’s discretion after discussing with the relevant employee.
Can the employer send employees on paid extended leave (garden-leave) from work?
As a general principle, the main purpose of employment is to perform a job as may be assigned by the employer (within the scope of the job description). Therefore, it would seem logical that the employer at its discretion can choose not to assign the work as well. The employer’s decision not to assign work would not be considered a breach of the employment law as long as the employee is being compensated for the time that the employee has put aside to be available for the work. However, it is important to note that the employer should not discriminate amongst the employees when selecting particular employees that are to be placed on garden leave.
Redundancy AND Unpaid, Reduced-paid Leave
Can an employer terminate an employee due to the impact of COVID-19?
Even though the Employment Act remains silent on an employer’s discretion to dismiss employees based on the economic and operational requirements of the employer (“redundancy”), this has been recognised by the Maldivian courts as a justified reason for dismissal of an employee in the Maldives. The courts have emphasised that terminating an employee should not be taken lightly and have imposed strict guidelines as to the manner and procedure in which redundancy may occur in the Maldives. The intention of the employer and the requirement to act in good faith has been reiterated in each case regarding redundancy.
The Maldivian courts have established that an employer is required to demonstrate substantive fairness and procedural fairness prior to making any position redundant. If the employer has an existing redundancy policy, the employer should ensure that the employees are made aware of the existing redundancy policy.
What is required to establish substantive fairness prior to redundancy?
Substantive fairness relates to the existence of an “actual situation of redundancy” (refer to question below) and needs to be supported by the following:It is not targeted discrimination against a specific employee;
- The decision should be made in good faith; and
- It should be for purely economic reasons;
Are we currently faced with an “actual situation of redundancy” in the Maldives?
The High Court has established that the financial situation of the company and any changes to the material factors that relate to the operation of the employer’s business is essential in assessing whether a company is faced with an “actual situation of redundancy”. In addition, the following factors should be considered when assessing whether the impact of COVID-19 is an “actual situation of redundancy” in the Maldives:
- Can the expected losses be considered as part of the normal course of running the company?; and
- Are there any other steps which the employer and employee could take in order to avoid redundancy?
The answer to the first question seems fairly straight forward. The impact of COVID-19 is unprecedented and cannot be considered as a forecasted expense as part of the normal operation of businesses. The economic and the operational impact resulting from both the global impact of COVID-19 and the precautionary steps which the Government of Maldives has imposed has resulted in significant losses to certain industries in the Maldives, in particular the hospitality and travel industry.
The answer to the second question requires further analysis that relates to the individual employer’s situation. The potential “alternative” to redundancy seem far reaching term and the High Court in the appeal of Crown company VS Ahmed Azeem _(2015/HC-A-02/03) , (“Crown Case”) has emphasised the significant implications of the failure to explore alternative options:
Therefore, granting unpaid or reduced paid leave should be considered as an alternative prior to making a position redundant. In our current situation in the Maldives, the government and other financial institutions have provided incentive programmes as possible alternatives in order to support the companies during this period. The decision whether these financial incentives can be adopted is at the discretion of the Company. The High Court decision seems to suggest that an “actual situation of redundancy” will only arise after these alternative options have been considered by the Company. Therefore, based on the Crown Case, it is our opinion that prior to making any position redundant, the employer should consider whether an arrangement for unpaid or reduced paid leave can be agreed with the employee.
Can the employer send employees on unpaid leave or reduced paid leave?
While there are no provisions in the Employment Act that governs the employer’s ability to force employees to take unpaid or reduced-paid leave, the Crown Case seems to suggest that an employer could send an employee on unpaid leave or reduced paid leave in the circumstances that the decision is being made is in order to prevent the employee being terminated on grounds of redundancy. The terms of the unpaid leave or reduced paid leave should be agreed between the employer and employee. It is important to ensure that the employer does not discriminate in how the unpaid leave or reduced paid leave is implemented amongst the employees.
What are the requirements to establish procedural fairness prior to redundancy?
The procedural fairness requires the employer to act in good faith and demonstrate due process and fair treatment of employees prior to making any position redundant. In order to establish procedural fairness, an employee must demonstrate that the following process of redundancy is followed:
Step 1: The decision to make the position redundant was made based on an “actual situation of redundancy”.
Step 2: Communications amongst all employees which includes:
The economic and operational circumstances faced by the employer and the decision to make the position or certain positions redundant. The details of the procedure which will be followed by the employer in selecting the positions that will be made redundant. Details of any redundancy package or pre-allocated redundancy allowance. Any such redundancy package is only applicable if the employer chooses to make it available and is not mandatory under Maldivian laws.
Step 3: Individual Employee Communication which includes:
Providing notice of redundancy (in accordance with the notice period under employment agreement or s.22 of Employment Act or payment in lieu of notice).
Providing details of the exact reasons why the employee is subjected to redundancy.
Providing details of any payment or additional benefits that are to be provided prior to being made redundant. Maldivian courts have emphasised the importance of employers providing adequate time to the employee when communications are shared with them. Furthermore, it should be emphasised that the decision of selecting the employee that is to be made redundant must be arrived at following a properly scrutinised process, which ought to be both transparent, fair and in good faith.
What is the employer’s obligation for consultation as part of the procedural fairness?
As procedure for redundancy is not legislated under the Employment Act, we rely heavily on the precedents established by our courts in establishing procedural fairness. It is apparent that the courts have emphasised the importance of an employer’s obligation to provide adequate time and information to employees in the situation of redundancy. The courts have reiterated that the standard for procedural fairness is derived from the ILO Conventions and the established law in ‘democratic countries’ such as UK, Australia, New Zealand and Canada. It is clear that the ILO Convention has emphasised the importance of consultation with the employees as part of the redundancy process. It is intended in order to allow the employees an opportunity for consultation on measures to be taken to avert or minimise terminations and allow employees to find alternative employment and to make better informed decisions. It is our opinion that in order to establish procedural fairness, an employer should organise such consultation as part of the companywide communication with regard to the redundancy in the company.
How is continuity of employment effected by garden leave and unpaid leave?
The employment relationship between an employer and employee continues as long as there is a valid employment agreement between the parties. Therefore, regardless of whether the employee is working, on paid leave or unpaid leave, as long as the employment contract between the employer and employee has not been terminated, it would be deemed that the period of employment continues accordingly. For example, if an employee is granted four months of unpaid leave within the first month of employment, the employee for all intents and purposes, be deemed to have completed the statutory probationary period upon the end of the 3 months of employment.
Health and Wellbeing
1. Seek accurate information from legitimate sources
Limit yourself to reading information only from official sources like the World Health Organisation (WHO), or reliable national sources (for example, Maldives government website). These credible sources of information are key to avoid the fear and panic that misinformation may cause
2. Look after yourself
Self-care in the wake of the coronavirus outbreak includes focusing on things you can control (like having good hygiene) instead of those you cannot (stopping the virus). Where possible, maintain your daily routine and normal activities: eating healthy meals, getting enough sleep and doing things that you enjoy. Consider creating a daily routine that prioritise your wellbeing and positive mental health. Activities, like taking a walk, meditating or exercising, can help you to relax and will have a positive impact on your thoughts and feelings. In the event of self isolation, lock down use it as an opportunity that might have benefits like finally catching up on sleep.
It is particularly important for health care workers to take care of their basic needs and ensure good rest between shifts due to overtime hours or work overload in the time of crisis.
3. Reach out to others and support people around you
Keeping in touch with your friends and family may ease the stress caused by COVID-19. Talking through your concerns and feelings may help you find ways of dealing with challenges. Receiving support and care from others can bring a sense of comfort and stability. Assisting other people in their time of need and reaching out to someone who may be feeling alone or concerned can benefit both the person receiving support as well as the helper.
Many people may also wonder what to do if they are put under quarantine. Although the idea of self-isolation may seem daunting, keep in mind that this is only temporary and that there are still many ways to regularly connect with others digitally.
4. Maintain a sense of hope and positive thinking
Try and focus on things that are positive in your life. WHO recommends to find opportunities to amplify the voices, positive stories and positive images of local people who have experienced the novel coronavirus and have recovered or who have supported a loved one through recovery and are willing to share their experience.
5.Ask for professional support
Follow protection and prevention recommendations provided by qualified health professionals. If all of this does not help, consider reaching out for support by a professional counsellor or peers. Peer support is usually organised on a local or national basis so it is best to start your search with those in your local area so that you can actually talk with someone who knows what is available. Using terms such as ‘peer support for mental ill health’ or ‘mental health service user organisations’ and your locality into your internet search engine may well be helpful.
Training and Development
Can we ask employees to attend online training during the garden leave?
Post Covid19 activities
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