This note outlines the response adopted by other jurisdictions with regard to regulating and governing matters concerning Employer-Employee relationships. The intention of identifying such provisions, would better illustrate and assist nations like Sri Lanka, to determine the best possible response they can adopt to this crisis. Further noted is the lack of new legislation in a majority of the SAARC nations as opposed to specific enactments targeting employment matters in countries like the United Kingdom and The United States of America.
- The Coronavirus Act 2020 was introduced to Parliament on the 19th March 2020 and subsequently received royal assent on the 25th March 2020. It grants the government emergency, discretionary powers in order to tackle the COVID-19 pandemic.
- The act specifically outlines relief employers may be entitled to in the form of statutory sick pay. This is where an employee’s incapacity for work is related to coronavirus. In such circumstances the employer’s liability in respect of such incapacity is to be funded by Her Majesty’s Revenue and Customs to such extent and in such manner as may be prescribed.
Statutory Sick Pay
- Where an employee’s incapacity to work relates to COVID-19, the employer must provide statutory sick pay if that employee has been off work for at least four days.
- The employer will thereafter be able to reclaim up to two weeks’ statutory sick pay they have already paid to employees who have been so affected by COVID-19.
Claiming a grant
- Those who are self-employed or a member of a partnership and have been adversely affected by coronavirus may be able to-
- Claim a grant through the Coronavirus Self-employment Income Support Scheme.
- Claim wages through the Coronavirus Job Retention Scheme
- Claim for 80% of their employee’s wages plus any employer National Insurance and pension contributions, if they have placed them on furlough because of COVID-19.
- The scheme will allow employers to claim a taxable grant of 80% of their average monthly trading profits, paid out in a single instalment covering three months.
- This is a temporary scheme, but it may be extended.
United Kingdom’s Coronavirus Furlough Scheme
- The Government has introduced a Coronavirus Furlough Scheme, which opened officially on the 20th April 2020.
- The scheme essentially would provide assistance to employers in crisis by government intervention in order to pay their employee’s salaries during the crisis.
- To furlough would mean to ‘lay off or suspend temporarily’, usually without pay.
- The Government guidance says someone is furloughed if they remain employed but are not undertaking work.
- Through this scheme, the government will pay up to 80% of people’s wages.
- Thus employee’s will still be paid by their employer however the employee will not be able to continue working for their employer for the duration of the furlough.
- Further the scheme which did not start paying out until April, applies retroactively from the 1st of March 2020.
- In terms of applying to this scheme, any UK employer can apply to the scheme, including businesses, charities, agencies and public authorities. However, employees have to agree to be put on furlough and an individual therefore cannot apply by themselves.
- Moreover, it is not necessary for employers to show that they are suffering any sort of financial hardship in order to be eligible for such relief.
UNITED STATES OF AMERICA
- Two key legislative provisions outlining employment benefits in the US during the pandemic is seen through the Families First Coronavirus Response Act, enacted on the 18th March 2020 and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) enacted on the 27th March 2020.
- The Families First Coronavirus Response Act requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19.
- The Coronavirus Aid, Relief, and Economic Stimulus (CARES) Act designated $2 trillion in stimulus funding to help businesses and their employees cope with the economic impact of the COVID-19 outbreak.
- The CARES Act contains several important benefits in terms of unemployment insurance (UI) expansions.
Paid Sick Leave under the Families First Coronavirus Response Act
- Sick leave payments required to be made by employers may include-
- Payment of two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined or experiencing COVID-19 symptoms.
- Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of paybecause the employee is unable to work because of a bona fide need to care for an individual subject to quarantine or to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
- Up to an additional 10 weeks of paid expanded family and medical leaveat two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
- However, these provisions apply to certain public employers, and private employers with fewer than 500 employees.
- In contrast small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability.
- However, the Department of Labour regulations provide that if an employer closes its worksite or furloughs its employees due to a downturn in business or lack of work, employees are ineligible to receive paid sick leave or expanded family and medical leave while the worksite is closed.
- In these circumstances, employees may be eligible for unemployment insurance benefits regardless of whether their employer closes the worksite pursuant to a federal, state or local order or because of lack of business.
Unemployment insurance under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act)
- The act expands the eligibility of such unemployment insurance to new categories of workers, including the self-employed and independent contractors, and for workers who are unemployed due to COVID-19 related reasons.
- Providing an extra $600 per week in addition to what is normally available through the state unemployment insurance benefits.
- Unemployment insurance eligibility period is for those who become unemployed between January 27th 2020 through December 31st
- However, individual state unemployment programs, may affect an employee’s access to these benefits.
Loan facilities under the CARES Act
- The act empowers the US Department of the Treasury to set up a $454 billion loan program for mid-sized businesses (businesses employing 500 to 10,000 individuals)
- Qualification of applicants will require them to certify that the loan is necessary for its continued operations given current economic uncertainties.
- The act also created the Paycheck Protection Program to provide up to $349 billion in forgivable loans to small businesses with 500 or fewer employees.
- All applicants must however certify, that that the loan is necessary due to current economic conditions and that the funds will only be used for certain specified and authorized payroll costs and operational expenses.
Discretionary rights of the Employer
- Employer’s may reduce salaries so long as the reduction is done for bona fide long-term business reasons and not done on a day-to-day or week-to-week basis.
- For employees who are under contract, the employer must review the terms of the agreement before modifying an employee’s compensation or other employment terms.
- However, employers must continue to meet the minimum salary threshold applicable.
- Any substantial reduction in an employee’s compensation may be interpreted as constructive termination if the employee resigns as a result, and therefore employers should understand that such terminations may be interpreted as an involuntary employer-initiated termination for employment law purposes.
- In general Employer-employee relationships are governed primarily by the terms agreed in any employment agreement.
- An employer can’t make changes to these terms and conditions already agreed on, including hours of work, wages or salary, or the nature of the job itself, without the agreement of the employee.
- These changes must be discussed in good faith, and using agreed consultation processes and thereafter recorded in writing.
- Where workers are still able to conduct a majority of their usual duties from home, an employer would not be able to terminate the employment on ‘frustration of contract’ grounds.
- Where businesses have been disrupted in such a material manner that the employer would be unable to determine how to resume operations, and whether or not this would amount to a sufficient justification for termination of the contract would depend on the specific instances of each agreement, and the practical requirements of the job.
Relief available to Employers from the Government-
COVID-19 Wage Subsidy Scheme
- The Government has introduced the COVID-19 Wage Subsidy Scheme to support employers to keep their employees employed wherever possible.
- The wage subsidy will relieve the financial burden on the employer and help support existing employment arrangements.
- The scheme supports employees to ensure they continue to receive an income, and stay connected to their employer, even if they are unable to work.
- Employers who have applied for the COVID-19 Wage Subsidy for any employees after the 27th March 2020, must retain those employees for the duration of the period of the wage subsidy or they will be in breach of their obligations and will need to repay the wage subsidy.
COVID-19 Leave Support Scheme
- Employers may also be eligible for support from the COVID-19 Leave Support Scheme which would support businesses to pay their employees who can’t come into work because the Ministry of Health guidelines recommend they stay at home, or with regard to those who can’t work from home.
- Employees qualifying for this scheme would be those who have come into contact with someone who has COVID-19 and must self-isolate for 14 days, those who have tested positive for COVID-19 and are required to remain off work until they’ve been cleared by health professionals
- Redundancy should only be considered as a last resort where no suitable alternative arrangements have been found.
- Proposals that may involve redundancy must be considered in accordance with good faith requirements, employment law obligations, which may include any contractual consultation processes.
- With the ultimate aim of supporting businesses and assisting them continue through this period, when engaging with staff on these issues, the Employment Relations Act 2000 allows flexibility in the process, including consultation timeframes, to achieve workplace changes.
- The key is that both employers and employees must deal with each other in good faith throughout this process.
- Employees who have been made redundant are entitled be paid and their notice period and redundancy entitlements should be provided as agreed in the employment agreement.
Alternatives to Redundancy
- In some situations, such as genuine financial, commercial or economic problems, or a genuine restructuring of the business, an employer may consider proposing the following as alternatives to redundancy-
- Changes to an employee’s job description,
- Change to when or how work is undertaken (For example- shift work)
- Reducing an employee’s hours,
- Reducing an employee’s wages or salary, while still meeting the minimum wage requirements.
- Under these circumstances, the employee should be given a fair opportunity to consider, seek advice from their representatives, and respond to the proposed change. And any agreed changes should be recorded in writing.
- On the 23rd March the Emergency law dealing with the coronavirus pandemic was announced and published in the official gazette on the 26th March 2020.
- It seeks to outline a series of measures aimed at keeping the country’s economy afloat and providing protection against job losses.
- Twenty-five measures (ordonnances) in total were published which specifically targets both employers and employees and which attempts to reduce the negative repercussions of the epidemic on the French economy.
- Some of these measures are detailed below-
- The government has allowed employers to declare chômage partiel(temporary unemployment) in an attempt to prevent companies laying off staff en masse, and to encourage such companies, hit hard by the coronavirus crisis, from making workers redundant.
- If these companies qualify for ‘chômage partiel’their workers will get 84 percent of their net salary during the period they are not working, while those earning minimum wage get their whole salary reimbursed.
- Such payments are to be made by the employer who will thereafter be reimbursed by the state. Both employees on temporary or permanent contracts whose company has been hit by the crisis will be covered under this scheme.
A 60-hour work week
- Employers may, during this period of crisis, require employees to work longer than what is normally permitted in France.
- An employee may now be required to work a total of 60 hours within a week, compared to the previous 48 hours.
- Further the maximum work day has been extended to 12 hours, while the minimum period of rest has been decreased to 9 hours.
A mandatory holiday
- Employers may impose holidays on their employees during the COVID-19 This amounts to six days in total.
- This would mean that businesses can force their employees to take some of their annual holiday entitlement, to limit financial losses following them being unable to work.
- However only businesses that have a pre-existing agreements with unions may make use of this measure. If there are no unions in the business, an agreement needs to be made with the employees.
Help package for self-employed workers
- Self-employed individuals and small business owners that lose out during this crisis may be eligible for a help package that they will be able to apply for.
- On the 13th March 2020, the German Bundestag (Parliament) and Bundesrat (Federal Council) passed a law; the Arbeit-von-Morgen Act or the Work of Tomorrow Act in an expedited procedure to temporarily improve the regulations for short-time working compensation in response to the COVID-19 crisis.
- It aims to support the economy and labour market, based on the recognition that the COVID-19 crisis will result in considerable work absences.
- This would essential mean a reduction of working hours with a corresponding reduction in pay as a means of temporarily relieving a company’s financial burden.
Voluntary closure of the business
- Such a measure is stated as only being lawful if the employer’s interest in suspending the obligation to work outweighs the employee’s interest in employment, and will be determined on a case by case basis.
- For example; if a large number of employees have been infected with COVID-19 and the maintenance of the company’s activities with the remaining workforce is no longer feasible.
- However, the employer’s obligation to continue to pay the contractually agreed remuneration to the employees concerned remains in full force in the event of such a voluntary closure of the business.
Officially imposed closure of the business
- In cases where there is an officially imposed prohibition of the business activity, such as would be seen with a restaurant, café, sales shop, travel agency, etc., the employer may suspend its employees from their duty to work.
- However, the employer’s obligation to continue to pay these employees their contractually agreed remuneration remains in force.
- The employer will still have the option of applying for short-time work compensation in accordance with the new regulations passed by the Bundestag and Bundesrat.
Instruction to take leave
- The employer can instruct the employee to take leave at a certain time, however, the employee is not obliged to comply with this instruction. If the employee expresses different holiday wishes, the employer must take these wishes into account unless it is to create a conflict with other employee schedules.
- During the holiday leave period, the employer is obliged to pay the employee, which is calculated according to prevailing statutory provisions.
Regulations relating to Short-time working allowance
- The new regulations passed by the Bundestag with regard to short-time working allowance can be applied for by the employer if 10% of the employees in the company are already affected by the loss of work.
- The short-time work to zero, also known as a complete cessation of business operations, will entitle employees to receive a short-time work allowance.
- However, the aim of this measure of short-time working allowance is that the employee will eventually return to full employment.
- Therefore, no short-time working allowance is granted if a company is closed down completely without any prospect of reopening
- The Short-time allowance is applicable irrespective of the date it entered into force and will be granted retroactively from the 1st March 2020.
- Short-time allowance is granted for a period of up to 12 months and the duration can be extended by the government for up to 24 months.
- A temporary amendment to the Fair Work Act was introduced on the 9th April 2020, to help with the implementation of the JobKeeper payment scheme.
- The amended provisions enable employers who qualify for JobKeeper payments in relation to a particular employee to-
- Give the employee temporary and partial stand down directions in certain circumstances
- Temporarily alter the employee’s usual duties and locations of work in certain circumstances
- Agree with the employee on altering an employee’s days and times of work, and use of annual leave in certain circumstances.
Arranging flexible work
- There are a range of flexible working arrangements that employers and employees can explore, some of which may be as follow-
- Working from home
- Changing the number of hours an employee works
- Changing the start or finish times of employee’s shifts
- Changing patterns of work, such as rostering arrangements
- Changing the type of work done by employees.
- However, in making such changes both employers and employees need to consider and comply with any requirements under the Fair Work Act, an applicable award, enterprise agreement, employment contract or workplace policy.
JobKeeper Wage Subsidy Scheme
- The JobKeeper wage subsidy scheme provides qualifying businesses and non-profit organisations access to an Australian Government wage subsidy (known as the JobKeeper scheme).
- It helps employers significantly affected by COVID-19 to keep paying their employees. While also providing them the ability under the Fair Work Act to give directions (known as JobKeeper enabling directions) and make agreements with their employees to help manage their business.
- In being able to support the implementation and operation of this scheme, as of 9th April 2020, temporary JobKeeper provisions have been added to the Fair Work Act.
- Applicability of these temporary provisions commence on the 9th April 2020 and end on 28th September 2020.
- Qualifying employers can now, under the ‘JobKeeper enabling directions’ direct their eligible employees as follows-
- Stand down an employee (including by reducing their hours or days of work)
- Change an employee’s usual duties
- Change an employee’s location of work.
- Employers and employees may come to an agreement that would enable an employee to take their accrued leave entitlements during the coronavirus outbreak. They may include-
- Taking accrued annual leave
- Take paid annual leave, and further agree with the employee for them to take leave at half pay
- Using unpaid leave
- In circumstances where a permanent employee has already used all their accrued leave entitlements, parties can agree for the employee to take unpaid leave.
Standing down employees and business closures
- Employers may be able to stand their employees down without pay under certain circumstances, which may include-
- Where the business has closed because of a government direction relating to non-essential services.
- A large proportion of the workforce is in self-quarantine.
- There’s a stoppage of work due to lack of supply for which the employer can’t be held responsible
- Employees subject to such a direction shall remain employed during the period of the stand down.
- Where all other options have been exhausted, some employers may need to make their employee’s positions redundant.
- Under such circumstances employers must make sure they comply with any requirement to notify and consult about the redundancies under an applicable award, enterprise agreement, employment contract or workplace policy, and make reasonable efforts to find their employees other jobs.
- They also need to provide those employees with their correct entitlements, which may include notice, redundancy pay and payment of any accrued leave entitlements.
- No specific legislation has been enacted to deal with the consequences of the pandemic in terms of employment matters.
- However, Employer-employee relationships are governed under the prevailing laws; The Industrial Disputes Act 1947, The Code on Wages Act 2019 are a few such enactments.
- Importantly, the Ministry of Home Affairs by order issued on the 29th March 2020, exercising its powers under the Disaster Management Act 2005, clearly sets out the responsibility of an employer towards its employees during the lockdown:
“All the employers, be it in the Industry or in the shops and commercial establishments, shall make payment of wages of their workers, at their workplaces, on the due date, without any deduction, for the period their establishments are under closure during the lockdown;“
- Even the Ministry of Labour & Employment, advised on the 20th March 2020, that all public and private organizations are to refrain from terminating the services of their employees or reducing their wages.
- Considering the various orders and advisories issued by the government against termination of employees due to COVID-19, retrenchment/ termination is only to be considered as an option of last resort.
- Employees whose services do not fall under the ambit of the Ministry of Home Affairs Order can be terminated by their employer. However, this must be carried out as per the employment contract duly executed between them.
- Furthermore, where the option of retrenchment/termination is exercised all necessary processes like the notice period, intimation to government authorities, payment of retrenchment compensation, payment of gratuity etc. need to be adhered to.
Payment of Wages
- If any employee takes leave, they should be deemed to be ‘on duty’ without any consequential deduction in wages.
- It is clear from the Ministry of Home Affairs order that employers are mandated to pay wages only to eligible employees. This is therefore, subject to interpretation and consideration of the various existing legislative enactments.
- Further, no unilateral amendment to an employment contract in terms of their wages is possible, unless it is specifically stated in the employment contract between the employer and employee.
- If the employment agreement does not set out unilateral powers to the employer, the employer will need to obtain the employees consent, implied or express, before such a change is affected.
Work from Home
- While there is no statutory definition or any specific guideline that may regulate the said concept of working from home, there is a flexibility available with the employers to allow or not allow its employees to work from home and to specify their own guidelines for this purpose.
- Further as a consequence of the crisis and the need for social distancing various state governments and central government have from time to time issued various advisories for promoting work from home.
- No specific legislation has been enacted to deal with the consequences of the pandemic in terms of employment matters.
- However, Employer-employee relationships are governed under the prevailing laws; The Labour Act 2074 (2017) and the Labour Rules 2075 (2018).
- The said enactment prescribes certain obligations of employers in terms of prevention of contagious diseases.
- Further it imposes a general duty on the employer to formulate policy for occupational health and safety of employees.
- Which includes the requirement to establish a committee with responsibility to review and implement plans for occupational health and safety (OHS Committee)
Working from Home
- The Labour Act empowers an employer to prohibit any employee suffering from any contagious disease from attending work during the period of medical treatment.
- The employers will be permitted to implement the concept of work from home and such implementation is subject to discussions with the established occupational health and safety committee (OHS Committee)
- According to the general provisions on the prevention of contagious diseases the Labour act states that the employer can require the employee to utilise their unused sick leave for the duration of their medical treatment
- However, if this sick leave is insufficient for the duration of the medical treatment, then the employer may require an adjustment be made towards annual leave.
- If this too is insufficient the employer can require that the employee stay on special unpaid leave during the duration of their medical treatment.
Right to Lay-off Employees
- The prevailing law states that an employer can lay-off employees on several grounds one of which is financial difficulty.
- The maximum period an employer may keep employees in lay-off without consultation is for a period of fifteen days. Upon exceeding this time frame, such extension should be done in consultation with the trade union or the relevant Labour relations committee.
- Employers will still be required to make payment of half remuneration during this period.
- Notice of lay-off should contain;
- the reason for lay-off,
- the time period of lay-off,
- the name, designation, department and job description of the employee to be kept in lay-off,
- the payment of half of the remuneration of employees
- The statutory grounds for retrenchment would include;
- financial difficulty,
- any reasons due to which the entity should be fully or partially closed.
- Furthermore, if the Government orders full or partial closure of the business this may also fall under statutory grounds for retrenchment.
- Procedurally the employer is required to;
- Give prior notice to the Labour Office and Trade Union of at least 30 days
- The notice should stipulate grounds for retrenchment, probable date for retrenchment and probable number of employees affected by retrenchment.
- The legislation also provides priority rules for retrenchment. This would mean that employees should be retrenched as per following priority;
- Foreign nationals,
- Employees having received more punishments for misconduct,
- Underperforming employees and
- Employees hired last from among the workers in the same category of work.
- All retrenched employees are entitled to their retrenchment benefits and must be compensated accordingly.
- No specific legislation has been enacted to deal with the consequences of the pandemic in terms of employment matters.
- However, Employer-employee relationships are governed under the prevailing law; namely The Bangladesh Labour Act 2006 and The Labour Rules 2015
Relief available to Employers from the Government
- On the 25th of March the Prime Minister announced a bailout/stimulus package for export-oriented industries to mitigate the impact of the coronavirus on the country’s economy. It was stated that the money from the package could only be distributed in the form of salaries and wages for employees and workers of those industries.
Workforce reduction during Covid-19
- The prevailing options available to an employer for workforce reduction under the Bangladesh Labour Act is, stoppage of work, lay-off or retrenchment.
- In terms of stoppage of work, that is the temporary cessation of work, employers in times of epidemics (or in this circumstance a pandemic) are empowered to stop any section or sections of its establishment, wholly or partly, for such period as the cause for the stoppage continues to exist.
- In terms of lay-offs, the act sates that if the employee has completed at least one year of service under the employer and it thereafter is laid-off, he shall be paid compensation by the employer for every day during which he is so laid-off
- In terms of retrenchment, the act allows any employee to be retrenched from service of any establishment on the ground of redundancy.
- In addition to the above payments, employees will still be entitled to their provident fund payments, if any, and all final payment of dues of the retrenched employees will need to be paid.
Overall, as illustrated in this note, some nations have sought to enact legislative provisions that would directly target and address the problems affecting Employer-Employee relationships due to COVID-19. Whereas, on the other hand, some jurisdictions have utilised existing statutory provisions as their foundation and interpreted these provisions to best suit the prevailing COVID-19 crisis. The latter being implemented by way of government orders and advisories seeking to regulate and detail the rights and obligations that both Employers and Employees are bound by.
 Coronavirus Act 2020 http://www.legislation.gov.uk/ukpga/2020/7/part/1/crossheading/statutory-sick-pay
 Article on the UK’s Coronavirus Furlough Scheme https://www.wired.co.uk/article/uk-furlough-scheme-job-protection
 US Department of Labour website on Families First Coronavirus Response Act: Employee Paid Leave Rights https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave
 Government website on Terminating employment agreements because of COVID19 https://www.employment.govt.nz/leave-and-holidays/other-types-of-leave/coronavirus-workplace/terminate-employment-agreement-covid-19/
 Government website on Employment relating to the Wage Subsidy Scheme https://www.employment.govt.nz/leave-and-holidays/other-types-of-leave/coronavirus-workplace/wage-subsidy/
 Government website on Employment relating to the Leave Support Scheme https://www.employment.govt.nz/leave-and-holidays/other-types-of-leave/coronavirus-workplace/leave-support-scheme/
 Government website on Employment relating to Redundancy https://www.employment.govt.nz/ending-employment/redundancy/
 Article titled ‘Coronavirus: The measures France has taken that impact workers’ https://www.thelocal.fr/20200326/coronavirus-the-measures-france-is-taking-to-shore-up-its-economy
 Article with questions relating to Coronavirus, labour law, safety and health at work https://www.bmas.de/SharedDocs/Downloads/DE/PDF-Meldungen/2020/corona-faqs-en.pdf?__blob=publicationFile&v=9
 Order dated 29th March 2020 by the Ministry of Home Affairs, Government of India https://www.mha.gov.in/sites/default/files/PR_MHAOrderrestrictingmovement_29032020.pdf
 Advisory issued by the Ministry of Labour and Employment, Government of India dated 20th March 2020 https://labour.gov.in/sites/default/files/Central_Government_Update.pdf
 Article titled ‘COVID-19 : Our Take On Employment Issues In India’ https://www.mondaq.com/india/employment-and-workforce-wellbeing/913714/covid-19-our-take-on-employment-issues-in-india
 Article titled ‘Corona Virus (COVID-19) and Workplace’ http://www.pioneerlaw.com/news/corona-virus-covid-19-and-workplace
 Article titled ‘Covid-19 impact and responses: Bangladesh’ https://www.fairwear.org/covid-19-dossier/covid-19-guidance-for-production-countries/covid-19-impact-and-responses-bangladesh/
 Article titled ‘Workforce reduction during Covid-19: Information for employers’ https://thefinancialexpress.com.bd/views/workforce-reduction-during-covid-19-information-for-employers-1585582021