The spread of the Coronavirus continues following the initial outbreak in Hubei province, China at the end of last year. At the time of writing, more than 70,000 cases have been confirmed in China. Hundreds of other cases have been confirmed across Asia, with smaller outbreaks now being reported further afield, in the Middle East, Europe, North America and Australia.
There have been no reports of the virus spreading to Bermuda at the present time. However, Bermuda is amongst the many countries now advising against non-essential travel to China or other areas with active person-to-person transmission of the virus. Visitors to Bermuda and residents who have recently spent time in mainland China, Hong Kong, Macau or Taiwan are currently subject to an enhanced health assessment and may be subject to movement restriction and active monitoring for up to 14 days. Travelers who have recently been in Thailand, Japan, South Korea, Singapore, Malaysia and Vietnam are being advised to self-monitor for fever, cough or shortness of breath for up to 14 days. Given the high volume of business travel in and out of Bermuda in particular, the Coronavirus outbreak raises a number of legal issues that employers will need to consider, as discussed below.
Employers have a statutory obligation to ensure, so far as reasonably practicable, the health, safety and welfare at work of all employees, including ensuring a safe work environment and providing relevant information, training and supervision. It will therefore be important to identify areas of potential risk and take steps to remove or remediate those risks.
For example, employers are likely to want to limit employees travelling to high-risk areas on business. Employers could be at risk of breaching their statutory obligations or their implied contractual duties as an employer if they unduly pressure employees to travel to affected areas. Alternative arrangements, for example tele-conference facilities, should be considered where possible.
Although it is more difficult to prevent employees travelling where they like during their vacation leave, staff should at least be reminded of government guidance and the need for the company to protect the health of its staff. Employees should also be asked to inform the company if their travel plans place them at an increased risk of exposure.
Employees returning to Bermuda may be prevented from coming into work if they are advised by a government health officer to self-quarantine for a period of time, even if they have yet to display symptoms. In these cases, it may be possible for employers to put alternative measures in place, such as home working. If this is not possible, the general position is that employees who are ready and willing to work should be paid, but employers should check employment contracts, policies and any collective agreements for any provisions which apply to these circumstances. If the situation is unclear, it is advisable to seek legal advice on the best approach in each specific case.
The situation is more straightforward if employees are signed off sick having contracted the virus or displayed symptoms, as their absence should be treated in accordance with the employer's normal sick leave procedures. Employers should also consider whether to request that an employee seek medical advice if they start to display suspected symptoms. Again, it is advisable to review the employment documents to consider whether the employer has a contractual ability to require the employee to submit to a medical examination.
Employers need to balance their responsibilities against the risk of breaching anti-discrimination law if they are too heavy-handed. For example, banning all citizens of certain countries from working in the office would likely amount to unlawful discrimination. Employers should also be vigilant against employees being subjected to derogatory comments or harassment in the workplace because of their place of origin.
The Ministry of Health has advised the public that there are as yet no cases of the virus in Bermuda. Nonetheless, prudent employers should take steps to ensure they are well-prepared to deal with any related HR issues. Such steps could include:
- Continuing to monitor guidance from the WHO and local health authorities;
- Carry out a risk assessment and reviewing contingency plans for key staff absences and travel restrictions;
- Reviewing or establishing remote working policies and considering the available alternatives to face-to-face meetings;
- Reminding staff of workplace hygiene and prevention measures, reflecting the latest medical advice. Helpful updates can be found on the Government website;
- Pausing non-essential business travel to high-risk areas and keeping business travel policies updated in line with the latest developments and guidance;
- Liaising with staff where necessary to ensure they understand changes to policies and to provide reassurance that their welfare is being protected.
First published in The Bermuda Chamber Of Commerce Newsletter (Chamber Insider), March 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.