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Employment in Times of COVID-19

There are many time sensitive issues regarding the legal problems following the COVID-19 outbreak. 

Some company owners have ended employment or have forced their employees to take unpaid leave. How can an employee work remotely and still get paid? What is to be done in quarantine days and government isolation rules? Do employers have a duty to follow the health standards?

Today, the majority of countries are battling the Coronavirus. Employment laws and regulations and the scope of the social security and labor protection measures vary from one jurisdiction to another.

Does remote working work?

Employees are not entitled to decide to work from home on their own discretion. Remote work needs the consent of employers. Use of video conferencing facilities can be the best solution. Due to the lack of regulatory clarity, labor lawyers, state officials, the relevant agencies and authorities should implement new policies and acts for the Coronavirus time.

In Belgium, a legal context for occasional remote telework was implemented in 2017.  Under the Act, telework is defined as a form of organization of the work which is performed outside the workplace.

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The right to a work leave or remote work depends on various factors such as the employment law of each jurisdiction and the level of severity of the COVID-19 spread.

 For instance, in South Africa the mere spread of the Coronavirus is not considered as a legal basis to leave work.  An employee who refuses to go to work must have a valid reason and those who don’t may face disciplinary action. It is wise for employees to negotiate with their employers about their individual claims and concerns before leaving work. 

Needless to say, remote work cannot be applied to all types of work. For this reason, there should be legal protections for such employees. This can refer to waiters or bartenders who’ve been laid off in the U.S. until safety hazards have been dismissed.. Even worse, some bars, nightclubs, wineries and breweries in the U.S. and many other countries are forced to shut down their operations. Social security contributions should be taken into consideration in addition to insurance coverage for those in need.   Although the United States bartner Guild has issued an emergency initiative and has received donations to aid those bartenders who are in need.

What are the latest acts?

Employment law of Belgium has considered this emergency time. According to an article written by Karla Vuyts, an experienced employment lawyer and certified data protection officer,

“In accordance with those rules, employees are in principle, entitled to request such occasional remote work in case of force majeure or personal reasons if the nature of the work to be performed remotely is compatible with telework. Employer and employee need to agree on the provision of the necessary equipment to work remotely, the availability of the employee during the remote work period, and whether the employer will bear some costs incurred for the telework. In the context of the Coronavirus, the Federal ministry of Employment has published a revised advice on March 15, 2020 urging employers to allow the employees to continue to work and favor the organization of telework”.

More importantly, Families First Coronavirus Response Act (FFCRA) was recently passed in the U.S., and will be enforceable after going to the senate.  The Act provides paid sick leave for employees considering the provisions of the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). However, these updates and amendments are still not ideal for small businesses. Considerable points about the aforesaid acts are stated in an article as:

  • These acts provide up to 10 weeks of protected paid leave to eligible employees for a coronavirus related reason.

  •  Under the EFMLEA, the first two weeks remain unpaid, but for the next 10 weeks, eligible employees (those who have been employed with the employer for at least 30 calendar days) will receive two-thirds pay while on leave.

  • EFMLEA concerns small business employers. Many American workers who desperately need paid leave, such as service workers at restaurants that are subject to franchise agreements, may not receive EFMLEA paid leave benefits”.

In California, if the employees’ workplace has shut down or their working hours have been reduced, there is still legal protection. In this situation, according to the Los Angeles Times, “you may be eligible for unemployment benefits that range from $40 to $450 per week. You can file a claim with California’s Employment Development Department”.

What about occupational health and safety requirements?

Workplace health and safety obligations are important to an employers’ obligations. Considering the Coronavirus outbreak spread, the health risks of the workplace should be reduced by an employers’ precautionary measures.

Recently, the U.S. Department of Labor Occupational Safety and Health Administration has published a guidance on preparing workplaces for COVID-19. The guidance’s focus is on industrial hygiene practices and also infection prevention. It requires the employers to develop an infectious disease preparedness and also proper policies in order to identify and isolate the suspected patients.

Administrative Controls described in the said guidance is comprehensive and can be followed by all institutions. Administrative Controls include the followings:

  • Encouraging sick workers to stay at home.

  •  Minimizing contact among workers, clients, and customers by replacing face-to-face meetings with virtual communications and implementing telework if feasible.

  • Establishing alternating days or extra shifts that reduce the total number of employees in a facility at a given time, allowing them to maintain distance from one another while maintaining a full onsite work week”.

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What can be concluded in terms of employment?

For both employers and employees, it is essential to consult with experienced legal advisers when addressing issues within the workforce. Accordingly, individuals must remain updated and be fully aware of changes in their rights and duties during pandemic time. Let’s consider the positive aspects of Coronavirus, too, which can have a hidden advantage in further benefits and an update to labor laws!

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