* Co-authored by: Tae Eun Lee
In response to the COVID-19 outbreak, the government of South Korea has implemented strict measures to combat it. The following Frequently Asked Questions (FAQs) are designed to address some of the more common questions that employers with operations in South Korea currently face, including how to handle safety and health rules, travel restrictions, privacy of employees' health information, compensation, and other employment issues. Employers are also encouraged to consult relevant guidance and FAQs put forth by the World Health Organization (WHO), the Ministry of Employment and Labor (MOEL) (links in English/Korean), the Ministry of Foreign Affairs, and the Ministry of Health and Welfare.
1. Should an employer restrict travel to all "affected areas" where there have been confirmed cases of COVID-19 infections, as reported by the World Health Organization (WHO)?
The Ministry of Employment and Labor (MOEL) highly recommends restricting employee travel to areas affected by COVID-19. As employers have an obligation to safeguard employees' health, it is advisable for employers to impose such restrictions on business travel.
Notably, the MOEL has not expressly prohibited business travel to affected areas. Accordingly, if an employer has a business necessity to send an employee on business travel to an affected area, the employer should ensure the employee works from home for 14 days after returning from such travel to avoid contact with other employees and therefore fulfill its duty to protect the well-being of its employees.
2. What should an employer do if an employee shares that they plan to travel to an affected area?
An employer should warn the employee that such travel may adversely affect the general health of other employees in the workplace and that the employee will be quarantined at home after the travel. An employer may further warn that the resulting quarantine may impact the employee's wages.
3. How should an employer handle employees who have family members who have traveled to affected areas?
An employer may require such employees to work from home, following MOEL's safety guidelines that exposure to the virus poses a risk for infection and transmission to others.
4. Can we prevent employees from traveling to affected areas for personal reasons?
Not directly, but an employer can reduce the likelihood of such travel by reminding the employee that the resulting quarantine may be unpaid.
5. What discrimination issues should employers address/be aware of?
Taking measures solely based on the impact of COVID-19 would not likely be considered discriminatory. Still, employers in Korea must remember to treat fixed-term and part-time employees with the same benefits and working conditions as full-time permanent employees. Otherwise, this could lead to unlawful discrimination.
6. What are the employer's obligations to prevent harassment of those suspected of being infected?
Korea recently adopted a workplace anti-harassment scheme to prohibit bullying. An employer must make sure that an employee is not harassed or bullied for any reason, including any reason arising out of the coronavirus.
7. Can employers take the temperature of employees who are coming to work?
Under a MOEL guideline, issued on February 24, 2020, temperature screening is likely to be allowed in light of the concerns for public health and safety. Also the Personal Information Protection Act does recognize an exception to data privacy restrictions for public health and safety reasons. Employers, nonetheless, must protect employee's right to the privacy of their medical data and to use such data to a minimum extent.
8. Are there any rules on what employers are allowed to do concerning subjecting employees to medical examinations or health-related tests that would apply to an emergency situation involving a communicable illness such as COVID-19?
During a phase of the COVID-19 outbreak, South Korea reportedly was testing over 20,000 people per day. Given the government's focus on testing as a measure to curb the spread of the virus, employers' measures to subject employees to temperature testing during this outbreak likely would be permitted under the Occupational Safety and Health Act and the Infectious Disease Control and Prevention Act. Employers should work with counsel to implement a testing program that still safeguards employees' rights.
SAFETY & HEALTH RULES
9. Are non-healthcare employees required to wear respirators or other personal protective equipment?
There is not yet an express provision in the Occupational Safety and Health Act or other relevant statutes that generally requires an employer to have non-healthcare employees wear masks, although such a requirement might be imposed in certain limited areas/industries (e.g., daycare centers, nursing centers, prisons, military facilities, etc.).
10. Can an employer with a public-facing business, prevent employees from wearing a surgical mask or respirator?
Korean law does not address this point in general (except for limited areas such as daycare centers, nursing centers, prisons, etc.), so an employer could technically prohibit employees from wearing surgical masks or respirators. But, wearing such masks is common in South Korea, and could be considered a valid social distancing measure to help protect an employee's health. Therefore, it would be prudent to allow employees to wear masks.
11. What if an employee requests to wear some type of mask as an accommodation?
It would be prudent and common to allow it in Korea, although there is no express statutory requirement to allow it as an accommodation.
12. For employers that have events for large gatherings scheduled, should they cancel them?
The South Korean government has in general urged cancellation of mass gatherings. It is generally prudent to cancel large gatherings, though such a decision could lead to contract disputes with vendors or suppliers.
13. Has your country's government issued travel advisories? (If so, please summarize the guidance and provide a link to the government's website (if applicable)).
The Ministry of Foreign Affairs and Ministry of Health and Welfare provide information on the countries that have limitations for entering South Korea. This generally includes anyone flying from the Hubei province in China, those who have visited the province and are returning to Korea, and Japanese nationals who do not hold a visa issued after March 9, 2020.
Additionally, as of March 19, 2020, all people (including South Koreans) entering Korea must go through special entry procedures that include a screening process to check for COVID-19 symptoms.
14. An employee who recently traveled to an affected area (in another country) is having difficulty re-entering your country:
(a) How can an employer help the employee get back into your country?
It would be wise to communicate with the Ministry of Foreign Affairs to secure support for the employees' return.
(b) In the case of a foreign employee, will the government's travel advisories affect an employer's ability to get the foreign employee back into the country? (Discuss if there are visa-related issues)
This is a fast-developing area, so travelers should check the advisories before and during any travel. As noted, effective March 9, 2020, Japanese nationals were required to secure a visa to enter Korea, though previously Japan was part of a no-visa entry program.
UNEMPLOYMENT & OCCUPATIONAL RISK LIABILITY
15. Do employer-instituted quarantines or temporary shutdowns or mass layoffs entitle workers to unemployment benefits or severance?
Generally, an employer will be required to pay a business suspension allowance of at least 70% of "the average wage" if the employer, on its own initiative, temporarily suspends business. However, if the business suspension was done to prevent the spread of the disease, then an employer may not have to pay allowances (though MOEL strongly recommends doing so). The standard of whether any allowance must be paid depends on whether such a suspension could be attributable to the employer and is a very fact-specific question.
The government plans to provide subsidies based on individual daily wage (up to KRW 130,000 per day) to employers that grant paid leave to employees who are quarantined, and the offices of the National Pension Service have been accepting applications from employers since February 17, 2020.
If an employer receives subsidies from the government for paid leave pursuant to the above process, the employer is required to provide paid leave, and if the daily wage of the employee at issue exceeds KRW 130,000, the employer is required to pay the difference.
16. What are an employer's workers' compensation obligations if an employee traveled to an affected area for work and contracted COVID-19?
If the employee becomes ill as a result of work travel, the employee would generally be entitled to paid leave for the work-related illness or injury.
If an employee violates the recommendations of the government agency or the employer and travels to an affected area, it is unlikely that an employee would be able to demand any wages in this situation. One may use paid annual leave during the 14 days of quarantine, otherwise it would be unlikely that an employee would be able to claim any part of the wages (although one can request to work from home if there is such a system and be eligible for the wages).
WORKS COUNCIL/INDUSTRIAL UNIONS
17. In the event of a government-declared quarantine or state of emergency, does your country's law override contractual provisions and allow for actions that might contradict a collective bargaining agreement (CBA)?
As a matter of general law, any mandatory statutory provision supersedes the CBA or rules of employment.
18. According to your government's health department, what are the steps that employees should follow to notify the authorities that they suspect or are confirmed to have a COVID-19 infection?
The MOEL guideline issued on February 24, 2020, urges the public to promptly report to the center of the disease control and obtain necessary guidance. Click here for the relevant page on MOEL's website providing information on how to report such cases.
19. Can an employer require employees to self-report having a COVID-19 infection?
Under the relevant statute (Personal Information Protection Act), it would be safe to obtain the consent of the employee to disclose the information regarding the infection. (There is a stronger degree of protection when the employee is reporting their own health condition). There is a general exception to privacy law restrictions when the matter concerns the public health and safety, but it is much-debated whether such an exception can be applied in the given situation, so care should be taken.
20. If one of our employees is quarantined, what information can we share with our employees? Who can we share it with?
An employer may only share the minimum amount of information needed in securing the general health and safety of other employees. Sharing information where the infected personnel visited, and the date when it occurred, would likely be permissible (though some degree of privacy concerns remain). However, an employer must not include name or other information that would identify the infected personnel.
21. What privacy concerns do we need to be aware of when we are asking for the health information of our employees in order to evaluate whether they need to be quarantined?
As discussed above, information about a COVID-19 infection is sensitive information that requires an employee's consent to be processed. Though the general exception regarding public safety and health can provide an exception, the scope of application of such exception is unclear. An employer will need to exercise care in this regard.
As this is a fluid and rapidly changing situation, please keep in mind that different or additional facts may warrant re-assessment of policies and practices so they can serve the best interest of employees, employers and the community at large.
* Tae Eun Lee is an Associate at Yulchon LLC in Seoul.
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.